May 19, 2021

Chief Justice Roberts and the Antiquities Act

John D. Leshy

On March 22, 2021, Chief Justice John Roberts filed a statement accompanying the Supreme Court’s denial of a petition to review the decision of the Court of Appeals for the D.C. Circuit in Mass. Lobstermen’s Assn v. Raimond. The lower courts had rejected challenges to President Obama’s establishment of a 3.2-million-acre marine monument off the coast of New England. 

Roberts’ statement raised questions about the scope of the president’s power in the Antiquities Act of 1906 to protect public lands. The key provision of that Act gives presidents authority to protect “objects of historic or scientific interest” found on lands “owned or controlled by the United States” as national “monuments,” so long as their breadth is “confined to the smallest area compatible with the proper care and management of the objects to be protected.” 54 U.S.C. § 320301(b).

The Roberts statement has led some to suggest that the Biden administration should de-prioritize use of the Antiquities Act out of fear that the courts are poised to strike down such actions. For the reasons that follow, I believe it would be a huge mistake for the administration to pay it much regard. 

First, consider what the Roberts statement is not. It was not an opinion of the Court. No other justice joined it. It does not address the rich history of the Act and its implementation. Instead, it flippantly begins with a reference to a dictionary definition of “monument,” and goes on to concede that the Act “vests” the president with “significant discretion,” and “broad authority” that carries with it great “flexibility.” Only then, without citing any authority whatsoever, it asserts that “[s]omewhere along the line,” the Act that has given the president “sole discretion” to designate features of public lands for protection along with the “smallest area compatible with [their] proper care and management” has “ceased to pose any meaningful restraint.” The Roberts statement does not, however, condemn this as a huge mistake that the courts need to correct. Instead, it simply, and tepidly, suggests that this “may warrant consideration” by the Court at some future time.

Second, although the Chief Justice does not indicate it, the issues he identifies about how the Antiquities Act has been used—the “scope of the objects that can be designated under the Act and how to measure the area necessary for their proper care and management”—are hardly new. Indeed, they were raised as far back as 1908, when President Theodore Roosevelt used the Act to establish the 800,000-acre Grand Canyon National Monument. In the more than a century since then, these issues have been raised again from time to time. Over those many decades, nearly every single president, from both political parties, has used the Act to protect a total of more than 100 million acres of public lands onshore, and several hundred million acres of submerged public lands offshore. As all that was happening, almost entirely without exception, neither the courts, nor the Congress, nor subsequent presidents have ever taken steps to relax protections the Act has been used to provide to public lands. 

Third, while the Supreme Court and the lower federal courts have occasionally considered issues Roberts raised in reviewing presidential use of the Act, no court opinion at any level has discovered and enforced limits on the president’s power under the Act. The reported decisions go back to Cameron v. United States, 252 U.S. 450 (1920). There, the Supreme Court unanimously upheld Theodore Roosevelt’s Grand Canyon monument, tersely rejecting the claim that the Antiquities Act provided “no authority for its creation.” After observing that Roosevelt’s monument proclamation called the Canyon “an object of unusual scientific interest,” the Cameron Court went on to say it “has attracted wide attention among explorers and scientists, affords an unexampled field for geologic study, is regarded as one of the great natural wonders, and annually draws to its borders thousands of visitors.” The Roberts statement ignored the Cameron decision at the same time it blithely asserted that the Court has “never considered” how a large monument “can be justified under the Antiquities Act.” 

The Roberts statement also ignored the fact that the Court has never reacted favorably to any claim that presidents have exceeded their authority under the Antiquities Act. See, e.g., Cappaert v. United States, 426 U.S. 128 (1976) (opinion by Chief Justice Burger for a unanimous court). The same thing is true of every lower court that has considered such questions. See, e.g., Mountain States Legal Foundation v. Bush, 306 F. 3d 1132 (D.C. Cir. 2002)Tulare County v. Bush, 306 F.3d 1138 (D.C. Cir.), cert. denied, 540 U.S. 813 (2002); State of Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo 1945)Utah Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004). Challengers in the last two cases did not bother to appeal their losses to higher courts.

Instead of referencing any of those decisions, the Roberts statement identifies just one decision construing the Act, Alaska v. United States, 545 U. S. 75, 103 (2005). It grudgingly concedes that the Court there “suggested that an ‘ecosystem’ and ‘submerged lands’ can, under some circumstances, be protected under the Act.” In that case, the Court did much more than “suggest” that result. The primary issue was whether President Coolidge’s use of the Act to create Glacier Bay National Monument in 1925, and FDR’s enlargement of it in 1939, were sufficient to defeat the presumption created by the 1959 Alaska Statehood Act that the new state succeeded to ownership of all submerged lands in the state, including those in Glacier Bay. The Court held, 6–3, that it did. As Justice Kennedy explained for the majority:

It is clear, after all, that the Antiquities Act empowers the President to reserve submerged lands. United States v. California, 436 U.S. 32, 36 (1978). An essential purpose of monuments created pursuant to the Antiquities Act, furthermore, is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1. From these two premises it would require little additional effort to reach a holding that the Antiquities Act itself delegated to the President sufficient power not only to reserve submerged lands but also to defeat a future State's title to them. Given the reasons motivating the creation of Glacier Bay National Monument and the overall complexity of the Glacier Bay ecosystem, it would be unsurprising to find that the relevant proclamations manifested intent to retain federal title. 

Fourth, also relevant to the issues discussed in the Roberts statement is how Congresses and successor presidents have treated presidential actions taken pursuant to the Act. Here, too, the record is clear. Many presidents have expanded national monuments established by their predecessors. None have abolished earlier monuments outright, and actions like President Trump’s shrinking of established monuments are exceedingly rare, and unheard of in recent decades. Similarly, Congress has many times legislated to confirm and expand presidentially established national monuments.

Moreover, Congress has refused almost all suggestions that it restrict the scope of the Act. Only in a handful of cases—almost all involving small, obscure areas of public lands—has Congress withdrawn protections presidents have established through the Act, and only twice has it ever limited the president’s power to use the Act in particular jurisdictions. See generally, Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Georgia L. Rev. 473 (2003); John Ruple, The Trump Administration and Lessons Not Learned from Prior National Monument Modifications, 43 Harv. Envtl. L. Rev. 1 (2019)

Of course, should President Biden decide to follow the lead of his many predecessors who have made vigorous use of the Antiquities Act to protect worthy areas of public lands, he should take care to ensure that his actions fit within its terms. This means, first, identifying with some precision those features of “historic or scientific interest” that deserve the protection of the Act, and second, explaining why the lands being included in new national monuments are the “smallest area compatible with the proper care and management of the objects to be protected.”

Should President Biden’s team do their jobs, I am confident that, if asked, the courts would uphold his actions. Indeed, it would be astounding were the courts to ignore the lengthy and unbroken history of judicial deference to presidential actions under the Antiquities Act, and instead be guided by implications they might choose to read into the Chief Justice’s superficial remarks. Put another way, the Biden Administration would be foolish to allow the Roberts statement to deter it from making vigorous use of one of the most consequential statutes in the long history of public lands, the Antiquities Act of 1906.

John D. Leshy

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John D. Leshy is distinguished professor emeritus at the University of California Hastings College of the Law. Leshy was also U.S. Department of Interior solicitor throughout the Clinton administration.