Thursday, February 8, 2018

Delineating the Antiquities Act

By Alan J. Peterson First published 5/25/17
Monument Review MS-1530
U.S. Department of the Interior
1849 C Street NW
Washington, DC  202240

Thank you for the opportunity to comment on the abusive use of the Antiquities Act over the past 20 years.  Wow, where to begin?   Perhaps we should start with a better understanding of the reason for the Antiquities Act and when it was enacted:
The Antiquities Act of 1906, (Pub.L. 59–209, 34 Stat. 225, 54 U.S.C. § 320301–320303), is an act passed by the United States Congress and signed into law by Theodore Roosevelt on June 8, 1906. This law gives the President of the United States the authority to, by presidential proclamation, create national monuments from federal lands to protect significant natural, cultural, or scientific features. The Act has been used over a hundred times since its passage. Its use occasionally creates significant controversy.
History of Antiquities Act of 1906:
The Antiquities Act resulted from concerns about protecting mostly prehistoric Native American ruins and artifacts – collectively termed "antiquities" – on federal lands in the West, such as at Chaco Canyon, New Mexico. Removal of artifacts from these lands by private collectors – "pot hunters," in the language of the time – had become a serious problem by the end of the 19th century. In 1902, Iowa Congressman John F. Lacey, who chaired the House Committee on the Public Lands, traveled to the Southwest with the rising anthropologist Edgar Lee Hewett, to see for himself the extent of the pot hunters' impact. His findings, supported by an exhaustive report by Hewett to Congress detailing the archaeological resources of the region, provided the necessary impetus for the passage of the legislation.[1]
Let’s think about how different our environmental laws are now in 2017, compared to 1906.  There are now many, many environmental laws in place that did not exist in 1906. Perhaps the most far reaching is FLPMA of 1976.  The list below is just an example of “laws on the books” which render The Antiquities Act to be obsolete:
The Federal Land Policy and Management Act, or FLPMA (Pub.L. 94–579), is a United States federal law that governs the way in which the public lands administered by the Bureau of Land Management are managed. The law was enacted in 1976 by the 94th Congress and is found in the United States Code under Title 43. The Federal Land Policy and Management Act phased out homesteading in the United States by repealing the pre-existing Homestead Acts.
Congress recognized the value of the public lands, declaring that these lands would remain in public ownership. The National Forest Service, National Park Service, and now, the Bureau of Land Management, are commissioned in FLPMA to allow a variety of uses on their land (of greater concern for the BLM, who is the least restrictive in terms of uses) while simultaneously trying to preserve the natural resources in them. This concept is best summarized by the term 'multiple-use.' 'Multiple use' is defined in the Act as "management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people." FLPMA addresses topics such as land use planning, land acquisition, fees and payments, administration of federal land, range management, and right-of-ways on federal land. FLPMA has specific objectives and time frames in which to accomplish these objectives, giving it more authority and eliminating the uncertainty surrounding the BLM’s role in wilderness designation and management.
Parts of FLPMA relating specifically to Wilderness are found under the heading Designated Management. Here, the BLM is also given power to designate Wilderness and are given 15 years to do so. The BLM is to conduct studies, classifying areas as 'Wilderness Study Areas.' These areas are not official Wilderness areas but are, for all intents and purposes, treated as such until formal adoption as Wilderness by Congress. Approximately 8.8 million acres of BLM wilderness are currently included in the National Wilderness Preservation System as a result of the wilderness reviews mandated by FLPMA. Those ordered to implement policies from FLPMA are trained government employees using guidelines expressly stated within the act itself.
Further legislation following FLPMA has continued to address these concerns as the needs of the American people have expanded to include natural resources such as oil shale and tar sands in the Energy Policy Act of 2005.
Federal Historic Preservation Laws, Regulations, and Orders
The National Park Service carries out a wide variety of historic preservation work and programs. This work is not only in the National Park System, but also in partnership with local communities and preservation groups, State and Tribal governments, other federal agencies, and international organizations. The Park Service's historic preservation work is governed by federal law (United States Code [USC] and Public Laws [PL]), federal regulations (Code of Federal Regulations [CFR]), Presidential executive orders, and orders issued by the Director of the National Park Service. This page provides information about these laws, regulations, and orders. Please see our page about Standards & Guidelines for additional information about the National Park Service's historic preservation work. The citations below are for informal use only.
These entries are organized by their commonly known names, rather than their current legal citations. For example, preservationists are more likely to discuss Section 106 than 54 USC 306108. Please note that Tribal, State, and local laws (as well as laws specific to other federal agencies) also establish important rules for historic preservation.
For information about the new Title 54 of the United States Code, please see our Federal Preservation Laws introduction.


American Battlefield Protection Act, as amended (54 USC 308101-308103)
Certified Local Government Program (54 USC 302501-302305)
Federal Property and Administrative Services Act, as amended:
  • Enforcement and Revision of Instruments Transferring Property under This Section (40 USC 550(b))
  • Property for Use as a Historic Monument (40 USC 550(h))
  • Former citation: 40 USC 484(k)(3) and (4)
Historic Sites Act, as amended (moved to four sections in Title 54):
National Center for Preservation Technology and Training (54 USC 305301-305306)
National Environmental Policy Act, as amended (42 USC 4321 [Purpose] and 42 USC 4331-4335 [Policies and Goals])
  • Environmental Impact Statements (40 CFR 1502)
  • Implementation of the National Environmental Policy Act (43 CFR 46)
  • Procedures for the Implementation of the National Environmental Policy Act (36 CFR 805)
National Historic Landmarks Program (54 USC 302102-302108)
National Historic Preservation Act, as amended (54 USC 300101 et seq.: Historic Preservation)
  • Former citation: 16 USC 470 et seq.
National Register of Historic Places (54 USC 302101-302108)
National Trust for Historic Preservation of the United States (54 USC 312101-312106)
Procedures for State, Tribal, and Local Historic Preservation Programs (36 CFR 61)
Public Buildings Cooperative Use Act [Section 102], as amended (40 USC 3306: Accommodating Federal Agencies)
Theft of Government Property (three key sections):
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) (19 USC 2601-2613: Convention on Cultural Property Implementation Act, as amended)


Abandoned Shipwreck Act, as amended (43 USC 2101-2106)
Archaeological Resources Protection Act, as amended (16 USC 470aa-mm)
Archeological and Historic Preservation Act, as amended (54 USC 312501-312508: Preservation of Historical and Archeological Data)
Curation of Federally Owned and Administered Archeological Collections (36 CFR 79)
Native American Graves Protection and Repatriation Act, as amended (25 USC 3001-3013)
Preservation of American Antiquities (43 CFR 3)
Protection of Archeological Resources (43 CFR 7)
Sunken Military Craft Act (10 USC 113 note)
One also must ask, why “Presidents” can single handedly, without support or cooperation from anyone, usurp Congress’ Constitutional Authority to manage Public Lands?
Federal lands are lands in the United States for which ownership is claimed by the U.S. federal government, pursuant to Article Four, section 3, clause 2 of the United States Constitution.[1] The United States Supreme Court has repeatedly held that this section empowers Congress to retain federal lands, to regulate federal lands such as by limiting cattle grazing, and to sell such lands.[2] As of March 2012, out of the 2.27 billion acres (918.6 million hectares) in the country, about 28% of the total was owned by the Federal government according to the Interior Department.[3] The United States Supreme Court has upheld the broad powers of the federal government to deal with federal lands, for example having unanimously held in Kleppe v. New Mexico[4] that "the complete power that Congress has over federal lands under this clause necessarily includes the power to regulate and protect wildlife living there, state law notwithstanding
It is also worth asking, why did the western states never secure ownership of the lands within their borders?  Utah is 67% federally controlled territory.  Does that sound like a “STATE” to you?  Allowing a sitting President to abuse the authority of an obsolete law (not obsolete because of it’s age, but obsolete because there are so many other laws that have been created by subsequent Congresses that manage public lands.
As for “Bears Ears National Monument”
On December 28, 2016, President Obama proclaimed the 1,351,849 acres (547,074 ha)[5] Bears Ears National Monument, including the eponymous buttes and the surrounding landscapes, using his authority under the Antiquities Act to create national monuments by proclamation.[5][1]
Bears Ears National Monument is a United States National Monument located in San Juan County in southeastern Utah. The monument protects 1,351,849 acres (547,074 ha) of public land surrounding the Bears Ears, a pair of mesas. The name of the region is the same in each of the native languages represented there: Hoon’Naqvut, Shash Jáa, Kwiyagatu Nukavachi, Ansh An Lashokdiwe meaning 'Bears Ears'.[1][2] The area within the monument is largely undeveloped and contains a wide array of historic, cultural and natural resources. The monument is co-managed by the Bureau of Land Management and United States Forest Service (through the Manti-La Sal National Forest), along with a coalition of five local Native American tribes; the Navajo Nation, Hopi, Ute Mountain Ute, Ute Indian Tribe of the Uintah and Ouray Reservation, and the Pueblo of Zuni, all of which have ancestral ties to the region. The monument borders Canyonlands National Park and Glen Canyon National Recreation Area and surrounds Natural Bridges National Monument.
Just reading that description highlights all that is WRONG with the designation.  1.35 MILLION ACRES!!  To be managed by THE FEDERAL GOVERNMENT!!  But, wait, it’s already managed by THE FEDERAL GOVERNMENT.  So, why am I to believe that BLM, Forest Service and Park Service will do any better because of a name change?  All that will happen is that multiple use and sustained yield practices will be replaced by drastically more restrictive “park-like” management which eliminates machines, people, extraction, mining and domestic animals from the landscape.
If there are “sites” or “areas” that need better management practices, then hold the current (and future) managing agencies accountable.  If, as the proponents claim, the current managers have failed in their job, what makes anyone believe that these EXACT same mangers will succeed in the future?
So, please work with the locals who know the area the best to greatly reduce the size or totally rescind the designation of Bears Ears National Monument.
Thanks for listening,
Alan J. Peterson
2198 N 1200 West

Helper UT  84526