O n March 22, the Supreme Court will consider acting on a constitutional challenge to what is among the most misunderstood and abused federal land statutes: the Antiquities Act of 1906. If the Supreme Court does not act on American Forest Resource Council v. United States of America, it will green-light a vast expansion of executive power over all federal lands, waters, and natural resources, ultimately putting their fate in the hands of one person: the president.
Passed during President Theodore Roosevelt’s second term, the Antiquities Act gave presidents authority to declare “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments . . . which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”
The original purpose of the Antiquities Act was to protect archaeological sites, or “antiquities,” and other specific, definable objects and landscapes in federal ownership at risk of theft or desecration. Four months after the passage of the Antiquities Act, President Roosevelt declared Wyoming’s Devils Tower our first national monument. The designated area covered 1,304 acres.
Yet, over the last century, presidents have expanded the use of the Antiquities Act to make its original purpose and intent unrecognizable. For example, President Obama issued 34 monument proclamations directing the management of over 550 million acres of federal lands, waters, and resources.
This included the Northeast Canyons and Seamounts Marine National Monument in 2016 covering nearly 3 million acres, which is entirely underwater off Cape Cod. There are no known archaeological sites or antiquities there — except, perhaps, the “antiquity” fisherman now forever banned by presidential fiat from earning a living and providing food to American families from this massive expanse of the Atlantic Ocean.
Nowhere is this egregious expansion of executive power of the Antiquities Act more direct and alarming than the national monument at issue in American Forest Resource Council v. United States of America. There, Presidents Clinton and Obama used the Antiquities Act and executive power to simply ignore Congress, effectively rewriting federal law to fit their political agendas.
At issue is a legally unique set of forestlands in western Oregon managed by the Bureau of Land Management (BLM). In 1937, Congress reserved 2.6 million acres of forests (called “O&C lands”) and required that they be managed to support essential public services and local economies. The law says timber “shall” — not “may” — be harvested and sold under the principles of sustained yield on all O&C lands. Meaning, the BLM cannot harvest and sell more timber than the forest grows each year. The O&C Act was faithfully followed for nearly the next 60 years.
In the late 1990s during the height of what are remembered in the Pacific Northwest as the Timber Wars, President Clinton saw an opportunity to bypass congressional approval and impose his political agenda on federal lands. Citing authority under the Antiquities Act, in the year 2000 Clinton unilaterally created the Cascade-Siskiyou National Monument on 60,000 acres of O&C lands. Clinton’s proclamation explicitly directed the BLM to disregard the O&C Act. It prohibited sustained-yield timber harvests on the exact lands Congress reserved for that legal purpose.
This occurred four years after Clinton’s Northwest Forest Plan restricted logging on 24 million acres of national forests in the Pacific Northwest with the stroke of a pen. That executive action devastated forested communities, local economies, public services and law enforcement, and the forest sector. Tens of thousands of private-sector jobs disappeared and have not returned. Many rural communities in the Pacific Northwest have never recovered.
Sixteen years later, President Obama went a step further. Following President Clinton’s example, Obama tapped the unchecked powers of the Antiquities Act to expand the Cascade-Siskiyou monument by another 40,000 acres. Relying only on executive authorities, the Obama administration prohibited sustainable timber harvests on 80 percent of the 2.6 million acres of O&C lands. Without a single vote by Congress, two presidents gutted a law that was once the economic and social lifeblood of western Oregon’s rural communities.
These are not random actions in a faraway corner of the country in a blue state, where executive overreach has been ignored or protected by urban voters at the ballot box. This is the playbook that presidents have used and will use to claim, expand, and exercise unfettered power over federal lands, waters, and natural resources across the country. With Congress paralyzed by partisanship and dysfunction, the Supreme Court is the last roadblock and check to President Biden and future presidents in implementing their own environmental and political agendas. The stakes are high.
A week after becoming president, Biden issued an executive order announcing his commitment to “conserving” 30 percent of all lands and waters in the United States by 2030 (known as the 30×30 Initiative). This policy goal has not been approved or funded by Congress. Yet, activist groups give President Biden credit for adding a “record 24 million acres” to the 30×30 goal and funneling $18 billion of taxpayer money to “conservation” projects in Nevada, Arizona, Montana, Minnesota, New Mexico, and Alaska during his first term. These actions were implemented through unilateral executive action and the Antiquities Act. Tens of millions of additional federal acres must be “conserved” to reach the 30×30 goal.
As currently interpreted by lower courts and exercised in real life, the Antiquities Act provides no boundaries, no limits, and no legal test for its use by a president. Every acre of federal land and water is fair game for a president to designate and manage as he sees fit — as we witnessed in Oregon. No public involvement is needed. No economic or environmental analysis is completed before designation. No congressional debate, approval, or compromise is required.
No American would support giving a president that scale and scope of unlimited power, at least Americans who believe in democracy. On March 22, American Forest Resource Council v. United States of America will provide the opportunity for the Supreme Court directly to address this erosion of the separation of powers, confirm that Congress makes the laws, not the president, and limit the claimed unlimited powers of the Antiquities Act. This is the case. Now is the time.