In an unusual move, Chief Justice Roberts issued a “statement” regarding the denial of certiorari in Massachusetts Lobstermen’s Association v. Raimondo. The subject of his statement: The Antiquities Act of 1906. As Chief Justice Roberts notes, the statute—originally enacted to protect Pueblo ruins in the American Southwest—has been expanded to protect broad swaths of land and water. President Obama, for example, invoked the Act to unilaterally set aside some 553 million acres of land and water, permanently foreclosing nearly all local development.
The Antiquities Act vests discretion in the President to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”
But as the Chief Justice points out, there are two statutory limits on the President’s discretion: (1) the monument must be a landmark, structure, or object of historic or scientific interest; and (2) accompanying land may be reserved, but only the “smallest area” compatible with managing the object to be protected.
The statutory history indicates that no one would have contemplated a set-aside of some 553 million acres of land and water under the Antiquities Act. Worried about tying up local resources, Representative Stephens of Texas asked, “How much land will be taken off the market in the Western States by passage of the bill?” The Bill’s Sponsor, Representative Lacey, answered, “Not very much. The bill provides that it shall be the smallest area necessary for the care and maintenance of the objects to be preserved.” He then went on to reject the idea that the Act could be used to reserve “seventy or eighty million acres of land in the United States”: “Certainly not,” the Act was intended merely to “preserve … old objects of special interest.”
In contrast to the Left’s claims, the Antiquities Act is not crucial to protecting environmentally sensitive lands. A plethora of federal (not to mention state) statutes protect the United States’ important interests in protecting such lands. The Antiquities Act is a darling of environmentalists not because it is uniquely protective of the environment, but rather because it comes without procedural protections for the affected local communities. All that’s required is an Oval Office pen.
There are additional cases challenging monument designations in the pipeline. They may just end up at a Supreme Court finally poised to enforce the limits contained in the text of the Antiquities Act.