The Gazette - Federal power over public land should be restored to the people

Op-Ed

By Ken Buck

At the turn of the last century, Arizona, New Mexico and Oklahoma were territories of the United States with governors appointed by the president.

Other Western states like Utah (1899), Wyoming (1890), Idaho (1890) and Montana (1889) recently joined the Union. A few unscrupulous individuals took advantage of the unsettled and largely ungoverned area to loot and destroy natural and man-made treasures. It was necessary for Congress to yield power to the president so that he could quickly protect federal interests.

Congress has failed to revise the archaic laws that remain on the books designed to deal with issues from a bygone era. The Antiquities Act of 1906 is a prime example. Before the age of rapid transit and communication, the law addressed a special need on federally owned land.

For decades, looters known as "pot hunters" desecrated and destroyed priceless Native American sites.

Rapid westward expansion and industrialization threatened the region's natural wonders.

The Antiquities Act addressed the problem by granting the president authority to designate, and thereby protect, places of extraordinary historic or scientific value as national monuments - without time-consuming congressional approval.

Thanks to the Antiquities Act, President Theodore Roosevelt preserved some of America's greatest treasures: Devil's Tower in Wyoming; El Morro in New Mexico; Muir Woods in California; the Petrified Forest and Grand Canyon in Arizona.

Other presidents added to the long list, proclaiming national monuments large and small.

The intent of the law is important. But times have changed. Western states are now populated by private citizens who elect their own local and state governments. Like many outdated laws, the Antiquities Act is now used in harmful ways.

The unilateral authority granted to the president is dangerous in the hands of an out-of-control executive.

Presidential decrees based on narrow political or policy objectives harm local communities and undermine state and local priorities.

Congress has occasionally amended the Antiquities Act when the people in affected states felt the president abused his authority.

In 1950, the act was amended to require congressional approval for any presidential proclamation to establish or expand a national monument in the state of Wyoming.

Congress amended the act again in 1980, after President Jimmy Carter proclaimed 56,000,000 acres off-limits in Alaska. But the amendment only limited presidential authority to Alaska.

Other states, including Colorado, were left out.

In February, President Barack Obama declared more than 21,000 acres of Colorado land in Browns Canyon as a national monument. With a single decree, President Barack Obama broke with strong precedent in the Centennial State, where local leaders historically partnered with federal lawmakers to make conservation and preservation decisions.

In 2009, for example, bipartisan local and congressional leaders worked together to designate 250,000 acres of wilderness in Rocky Mountain National Park.

Dialogue, collaboration and teamwork succeeded. No presidential decree was needed.

"The park's wilderness designation was the result of multiyear, bipartisan efforts led by Colorado conservation groups and diverse allies, working closely with congressional offices, and the National Park Service," in the words of the Wilderness Society.

Environmentalist excitement this year over President Obama's designation of the Browns Canyon National Monument could easily turn to disappointment. As a partisan decree, with no effective local input and no protection through legislative enactment, the canyon's status can simply be undone by another president.

The problem with presidential decrees over federal lands is that they may further an improper policy or a partisan political objective of special interests. And they circumvent constitutional checks and balances.

Special designations on public lands owned by all the American people should be decided by acts of their elected representatives in Congress. They should receive the concurrence of the elected representatives of the people in the affected states, not be decreed from the White House.

As a check and balance, Congress should amend the Antiquities Act again. From this point onward, presidential declaration of a national monument should be a temporary measure. For a new national monument to achieve permanent status, each designation should be approved by Congress and by the legislatures of the states affected by the declaration.

In this way, we can limit political abuse from Washington and return power to the states, while preserving the purpose of the Antiquities Act.

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