Monument Proclamations Under Executive Order Review: Comparison of Selected Provisions

Summary

The Antiquities Act of 1906 (54 U.S.C. §§320301-320303) 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 President is to reserve “the smallest area compatible with the proper care and management of the objects to be protected.” From 1906 to date, Presidents have established 157 monuments and have enlarged, diminished, or otherwise modified previously proclaimed monuments. Presidential establishment of monuments has sometimes been contentious, based on the size of the areas and types of resources protected; the effects of monument designation on land uses; and the lack of requirements for public participation, congressional and state approval, and environmental review, among other issues.

On April 26, 2017, President Trump issued an executive order requiring the Secretary of the Interior to review national monuments established or expanded by presidential proclamation since 1996 that meet certain criteria. The review arises in the context of current controversy over the President’s monument authority and is to determine conformance of monument designation with a policy set out in the executive order. On May 5, 2017, the Department of the Interior (DOI) identified 27 national monuments that would be reviewed. One of the 27 monuments, Katahdin Woods and Waters National Monument, is under review based on the adequacy of public outreach and coordination with stakeholders in establishing the monument. The other 26 monuments are under review because the size at establishment or after expansion exceeded 100,000 acres. Of these 26 monuments, 5 are marine based and 21 are land based. The Secretary is to issue a final report on the review of monuments within 120 days of the issuance of the executive order—August 24, 2017. In his final report, the Secretary is to include recommendations for presidential actions, legislative proposals, or other actions. Congress has authority to alter the President’s authority to proclaim monuments and to establish, abolish, or amend monuments (including regulating uses of monument lands).

To facilitate congressional decisionmaking and oversight of national monuments, including consideration of uses of monument lands, this report provides a compilation and summary of provisions of proclamations for the 21 land-based monuments with sizes exceeding 100,000 acres. It focuses on provisions related to six topics important in the debate on national monuments: energy, livestock grazing, use of motorized and non-motorized mechanized vehicles, timber, hunting and fishing, and tribes. These provisions are summarized to provide an overview of their emphasis and variation, and the verbatim text of the pertinent provisions is provided in six separate tables. An analysis of monument proclamations in the context of other authorities would be necessary to determine the extent to which activities are authorized on particular lands and the effect (if any) on changes in land management on the ground.

The proclamations for the 21 national monuments generally bar new mineral and geothermal leases, mining claims, and prospecting or exploration activities, subject to valid existing rights. For all but one of the 21 monuments—Sand to Snow—the proclamations address livestock grazing. They typically express that legal authorities governing livestock grazing on agency lands also apply to lands within the monument. Most of the proclamations prohibit the use of motorized and non-motorized mechanized vehicles off-road except for emergency or administrative purposes. Only four of the monument proclamations address timber on monument lands, directly or possibly as part of language on vegetative management. The proclamations appear to recognize the primary authority of states to manage fish and wildlife, by generally specifying that the proclamations do not enlarge or diminish the jurisdiction of the relevant state with regard to fish and wildlife management. The proclamations for 14 of the 21 national monuments expressly state that they do not enlarge or diminish the rights of any Indian tribe.