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The landmark law is 116 today

Jonathan P. Thompson Jun 8

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Today, June 8, is the 116th anniversary of the passage of the Antiquities Act of 1906, which authorizes presidents to establish national monuments, among other things. To commemorate the occasion, we’re rerunning—with a few modifications—one of the Land Desk’s first-ever dispatches, “The Meaning of Monuments,” which appeared in January 2021. 

But first, a couple of tidbits from the old Twitter feed: 

I really dig this graphic showing how full, or empty, Colorado River Basin reservoirs are.

The Meaning of Monuments

When President Barack Obama established Bears Ears National Monument in December 2016, conservationists and tribal leaders were jubilant, knowing that the spectacular landscape and rich history of the region would be preserved. Those opposed to the monument called the designation “unilateral tyranny” (Utah Legislature’s public lands committee) and an “attack on an entire way of life” (Sen. Orrin Hatch). A year later, when Trump shrunkthe monument by more than 1 million acres, purportedly ushering in a new era of “wonder and wealth,” the Hatches of the world were puffed up with glee and the pro-monument folks were thrown into tearful mourning. Now, with President Joe Biden having already launched a review that is likely to culminate with the restoration of the original boundaries of both Bears Ears and Grand Staircase-Escalante national monuments, the tears have turned to those of joy. 

Often lost among the back and forth, the slow-motion emotional rollercoaster, and the overblown rhetoric was how a national monument designation affects the landscapes and the antiquities to which it is applied. There is no set-in-stone template for what a national monument is or means. Sometimes a national monument designation can significantly alter the way people interact with the landscape within its boundaries, other times it is mostly symbolic, amounting to little more than a line drawn around public land with a new label slapped on it. But a national monument designation is almost never the draconian land grab that detractors make it out to be, nor is it the preservation panacea for which advocates yearn. 

As the first light of sun saturates the Great Sage Plain in southeastern Utah, I jog along a sandy trail that winds through yellow-flowered chamisa in a wide-bottomed, shallow canyon. The air—still relatively humid from last night’s early August rain—is redolent with the smell of sagebrush. I stop, stand still, and listen for the soft coo of the mourning dove. Up the canyon a small rectangular structure perches on a giant sandstone boulder, its walls bright with the early morning sunlight. I pass through an opening in a fence indicating the dividing line between Hovenweep National Monument and plain old Bureau of Land Management Land. The differences between the land on either side are subtle but immediately palpable. The vegetation is not as thick on the BLM side, the soil is lighter in color and smoother in texture, and desiccated cow dung is evident in the dry wash-bottom. In satellite images the differences between the two sides of the line are even more distinct. 

This is a favorite area of mine to hike in, in part because by walking just a few miles through quietly beautiful terrain one can go from a national monument managed by the National Park Service, to BLM land, to another national monument managed by the BLM. And that gives the sagebrush-saunterer a visceral sense of what a national monument means and doesn’t mean. 

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In the early days of American westward expansion, the federal government stole millions of acres of land from the Indigenous peoples who had inhabited it for generations. The government called the stolen lands the “public domain,” imposed a rectangular grid upon them known as the Public Land Survey System, and then proceeded to “dispose” of the rectangles of land, giving them away to states and to individuals and corporations for virtually nothing via the Homestead Act, the General Mining Law, and the Pacific Railway Acts. The land that went unclaimed remained in the public domain and was a free-for-all upon which big-time livestock operations grazed their cattle and sheep with abandon, forever altering landscapes and ecosystems. Hundreds of thousands of archaeological sites also were left unprotected and open to plunder and even homesteading. 

“Few of the mounds have escaped the hands of the destroyer,” T. Mitchell Pruden wrote of Hovenweep’s cultural sites in 1903, two decades before it was declared a monument. “Cattlemen, ranchmen, rural picnickers, and professional collectors have turned the ground well over and have taken out much pottery, breaking more, and strewing the ground with many crumbling bones.” Richard Wetherill, the renowned but not-so-scrupulous early Southwestern archaeologist, homesteaded a good portion of what is now Chaco Culture National Historical Park, including Pueblo Bonito. But before he could patent the claim—or take title to the land—Congress passed the Antiquities Act and President Theodore Roosevelt wielded it to designate Chaco Canyon National Monument, thus cancelling out the homestead as well as precluding any possibility of future mining claims or homesteads there*. 

The Antiquities Act made it illegal to “appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument” on public land and gave the president broad powers to withdraw public domain land from disposal to protect the antiquities in question. While it also said that the withdrawal “shall be confined to the smallest area compatible with proper care and management of the objects to be protected,” the Act left that determination up to the president. Beyond that the Act did not lay out any specific rules or regulations for the monuments; those would be specified on a broad level in the monument proclamation, and further refined in the management plans. Grazing was allowed at Chaco, for example, until 1934, the same year that the feds finally decided to impose some order on public lands grazing with the Taylor Grazing Act. President Warren G. Harding’s proclamation designating Hovenweep National Monument in 1923 merely withdrew the land from future claims and put the land under the auspices of the National Park Service, which has its own rules and regulations, including a general ban on grazing and mineral leasing (the General Mineral Leasing Act was just three years old when Hovenweep National Monument was established). 

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Once on BLM land I wander away from the trail, careful not to step on any cryptobiotic soil. Unfortunately there is little of the intricate, living stuff in evidence, most likely because it was repeatedly trampled by cattle and sheep and possibly feral horses over the years. I wander as aimlessly as I can, avoiding straight lines, and stagger to a stop when I spot a big free-standing boulder capped with the remains of a lichen-covered wall. I gingerly make my way around the rectangular sandstone blocks, rubble that once stood as someone’s home, scattered about on the ash-colored earth. Potsherds—a rim of a bowl, a handle of a mug, polished by calloused hands or smooth stones some eight-hundred years ago—are scattered abundantly. It is a Hovenweep tower, though it is not in Hovenweep National Monument or any other monument or protected area. 

When first designated, Hovenweep was just a few-hundred acres. Over the years new units were added to extend protections to a small handful of associated villages. Yet even now the monument’s six units cover just 784 acres. Left out of the monument were thousands upon thousands of villages, structures, fields, shrines, “roads,” and other architectural features that are woven into every acre of the landscape of the entire region like a giant, cultural-historical tapestry. That meant that someone could come along and homestead or stake a mining claim on any of that non-monument land, patent the claim, and thereby privatize not only the land, but also the cultural sites, even complete villages, and by doing so they would remove any protections offered to the artifacts by the Antiquities Act.

In 1975 Congress passed the Federal Lands Policy Management Act, or FLPMA, which put the BLM into a stewardship role rather than merely as a facilitator of extractive activity on the public lands. FLPMA also put a halt to the practice of disposal. One could still stake a mining claim on public land and proceed to gouge it for the minerals it contained, but the land could not be patented or privatized, except in rare cases. The Archaeological and Historic Preservation Act of 1974 and the Archaeological Resources Protection Act of 1979 lent more protection to archaeological sites on public land, whether within or outside a national monument or park. 

In some ways this expansion of protective measures and regulations to all public lands changed the significance of national monument designations. Since the practice of disposing of public lands had gone the way of the dinosaurs, and given that most of the protections on land within national monuments has been extended to all public lands, What, one may ask, is the point of establishing a national monument? There are some more complicated answers to the question that have to do with symbolism and the power that comes with recognizing the value of a place. But there’s also a very simple answer: mineral leasing.

In late summer 2019, the BLM put drilling rights on 32,000 acres in eastern San Juan County on the block. Most of the parcels were not far from Hovenweep National Monument, while three contiguous parcels lay alongside Recapture Canyon, in an archaeologically rich area just east of the original boundary of Bears Ears National Monument (and within a whisker of the boundary proposed by the Bears Ears Inter-Tribal coalition). One Chaco-era village sits atop a steep-sided mesita in the middle of Recapture Canyon, like the Parthenon on the Acropolis in Athens. It is just outside of the leased parcel, but it could very well end up on the auction block in the future.

When auction day arrived, representatives from oil and gas companies logged onto something called Energynet—a sort of eBay for exploiting public lands—where bidding started at $2 per acre for the right to drill the three Recapture parcels. Kirkwood Oil & Gas** put in the highest bid, a whopping $3 per acre, which vested them with the right to develop the land within ten years of the sale. They still have to get a permit to do so, but the BLM hasn’t exactly been miserly with the things. That will open the door for them to scrape the land of its cryptobiotic soil, sagebrush, and other vegetation; build roads and pipelines; and drill deep into the earth, hydraulically fracture the well, and suck hydrocarbons out of the ground. If the land had been included in the national monument, none of this would have been possible.

In the lead up to the designation of Bears Ears National Monument, many well-intentioned folks—and some with more cynical aims—argued that a national monument designation for Bears Ears was unnecessary, (and the subsequent shrinkage meaningless), because even if the land was leased it would still be protected by multiple levels of federal rules and regulations, from the Archaeological Resources Protection Act to the many provisions of the National Environmental Policy Act and, most relevant to oil and gas development, Section 106 of the National Historic Preservation Act. Section 106 requires developers of any sort of project to conduct a cultural inventory of the affected area. If any “significant” sites are found, the pipeline, road, or well pad must be rerouted accordingly.

The practice is known as “identify and avoid.” It has generally worked to keep the bulldozers from scraping major sites. You are not likely to see a pumpjack grinding away atop a great kiva (yet you can certainly see and hear pumpjacks grinding away from many a great kiva). But Paul Reed, a longtime archaeologist and scholar of the Chaco world, told me a few years ago that Section 106 simply does not cut it when it comes to protecting less apparent features. Today, roads bisect villages, pipelines cut through ancient corn fields, and well pads have obliterated many “other super subtle things going on that are part of understanding that landscape,” said Reed. “That’s how ancient landscapes get fragmented.”

“Even though agencies try to mitigate the impact, it isn’t enough because you’ve literally destroyed the context in which those things exist,” Theresa Pasqual, former director of Acoma Pueblo’s Historic Preservation Office, and a descendant of the Pueblo people who occupied the Four Corners region for thousands of years, told me when I was researching a story on Chaco. “Most of our pueblos are still transmitting their migration history through oral means. So when you have development that begins to impact many of these sites they are literally destroying the pages of the history book of the Pueblo people.”

And that’s where national monuments come in—or can come in if the lines are drawn correctly. Whereas Section 106 protects just the individual structures, a wide-ranging national monument can also cover the context that surrounds them, putting it off-limits to mining or drilling or new road building. It’s a far more holistic approach, intended to protect every piece of the cultural landscape, not just the major sites. The difference between lands within Chaco park and those outside is a stark one and it’s startling to imagine what would have become of Pueblo Bonito and its surroundings had Roosevelt never acted. 

And therein lies the problem with Hovenweep and, to a lesser extent, Chaco: The monument lines left out so much of the context, leaving the bulk of the cultural tapestry vulnerable to being sliced up and unraveled. 

I continue my journey, heading eastward until I run up against another barbed-wire fence. The wire is strung tight along metal poles. I squeeze through it and by doing so pass from Utah into Colorado and from regular BLM land to Canyon of the Ancients National Monument, which, like most of Bears Ears and Grand Staircase-Escalante National Monuments, is managed by the BLM rather than the National Park Service. Grazing is allowed without a lot of restrictions in Canyon of the Ancients, so the land on the monument side of the fence is every bit as worn-down as on the non-monument side. 

Canyon of the Ancients represents an evolution in the government’s approach to protecting cultural landscapes. President Bill Clinton’s proclamation from 2000 blanketed a relatively large swath of landscape—164,000 acres—instead of just targeting individual sites. This ethos was extended to nearly ten times that amount of land when Obama designated the Bears Ears National Monument sixteen years later. “Canyons of the Ancients was perhaps the first to explicitly recognize that ruins do not tell the entire story—that ancients lived in, hunted, gathered and raised crops, and developed water and religious sites throughout the larger landscape,” said Bruce Babbitt, Clinton’s Secretary of the Interior. “Bears Ears brings this concept to fruition in an even larger landscape.”

At the same time, the protections offered to these large expanses of land were less complete than those extended to earlier monuments. Grazing would continue to go on as it had in Canyon of the Ancients, Bears Ears, and Grand Staircase-Escalante national monuments. Whereas new energy leases would be halted in Bears Ears and Grand Staircase-Escalante, Canyon of the Ancients was so ravaged by oil and gas and carbon dioxide extraction that development and even new leasing would be allowed to continue. Existing energy leases and mining claims are grandfathered in at all new monuments, and the Antiquities Act never extends to private, state, or tribal lands that fall within the monument boundaries. Calling a monument designation a land grab is misguided in any case, but especially with the less restricted monuments like Canyons of the Ancients and Bears Ears. 

When President Donald J. Trump then eviscerated the Utah national monuments, he not only reduced the size by significant amounts, but the new boundaries were also redrawn in a haphazard way, especially at Bears Ears, rendering the notion of landscape-scale protection almost meaningless. It was akin to slicing up Yellowstone National Park into small units, one for Old Faithful, one for Yellowstone Falls, and so forth. Responding to the shrinkage, the Bears Ears Inter-Tribal Coalition put out a statement that said, “The Bears Ears region is not a series of isolated objects, but the object itself, a connected, living landscape, where the place, not a collection of items, must be protected. You cannot reduce the size without harming the whole.”

And with the shrinkage, millions of acres that had been put off-limits to leasing and mining claims by the monument designations were suddenly laid open again, just like the aforementioned Recapture parcels. At the same time, the Trump administration’s take-no-prisoners quest for “American energy dominance” was blowing up the regulatory framework that was supposed to mitigate the impacts of development on that newly re-opened land. The administration then rushed together a skimpy management plan for what remained of the monument. It was so deficient that it seemed as if it were intended to demonstrate how meaningless a monument can be.

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Fortunately oil and gas and uranium companies did not pour in and stake mining claims en masse after the shrinkage, nor did the BLM put up any land within the former monuments for lease. That’s not because the resources aren’t there. Approximately 250 oil and gas wells have been drilled within the Obama-drawn boundaries of Bears Ears National Monument over the last century, including dozens on Cedar Mesa and in Valley of the Gods and one that blew in and caught fire near the foot of the Bears Ears buttes. The scars still haven’t healed, fifty, seventy, one-hundred years later. Several years ago an oil company scraped a road and well pad and put up a drill rig on Cedar Mesa’s Cyclone Flats, just outside the Fish Creek Wilderness Study Area. The well apparently came up dry, but the damage inflicted to find that out remains. The next well may be a gusher. The history of extraction in the West, after all, is one of commodity prices and innovation turning yesterday’s dry wells into today’s bonanzas.

Besides, a monument does far more than just keep looters or drillers at bay. It gives federal land managers more leverage to limit visitation, to steer people away from the most sensitive sites, to ban or strictly regulate motorized and non-motorized recreation, to forbid mountain bike races and other competitive events, to keep BASE jumpers from launching themselves into Arch Canyon, and to stop “adventure guides” from leading dozens of paying clients through your favorite, no-longer-so-secret slot canyon. None of that is a given, however. And that may be the most important lesson here: A monument designation in and of itself is only the beginning of the process. If the public wants genuine protection, it has to stay involved and keep advocating during the creation of the management plan and beyond. 

So monuments do have tangible meaning, they do add another layer of on-the-ground protection against a variety of threats. But they are also symbolic. Obama’s designation of Bears Ears National Monument went a long ways in this respect, acknowledging that tribal nations do have a say over their ancestral homelands, and that they should be involved in not only managing, but also interpreting those landscapes. Sarah Krakoff, a law professor at University of Colorado Boulder, put it this way in an article published by the Harvard Civil Rights-Civil Liberties Law Review:

“Bears Ears and other recent monuments constitute a step toward repairing past injustices and reintegrating disenfranchised groups with the landscape. Rather than create islands of nature separate from islands of people, as early conservation laws did, these monuments reflect human connections to the land and prioritize traditionally marginalized communities.”

In other words, a national monument designation can be an act of justice. What can have more meaning than that?

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