Wild Places and Irreplaceable Resources

This chapter discusses wilderness both as an idea that has had an evolving meaning and as a legal construct. It also discusses national monuments on public lands, another legal construct that has been used to protect a wide range of resources, including wilderness character. These areas overlap, but that overlap is far from complete, and the objectives underpinning these two designations, while complimentary, are not identical.

Wilderness

There are two kinds of wilderness, at least for the purposes of this chapter. Small “w” wilderness is wilderness as we envision it when we close our eyes. It is sometimes feared and sometimes revered—it is what Roderick Nash calls “the geography of the mind” (Nash 2014). Like fine art, we know it when we see it, but we often have difficulty developing a common definition or agreeing upon its value. Big “W” Wilderness, while rooted in Nash’s geography of the mind, reflects the legal constructs that we as a nation have developed to steward our wild places. Big W Wilderness is the proper noun we use to identify the protected bubbles that exist on the maps of our public lands.

In his famous book Wilderness and the American Mind, Nash traces the evolution of the idea of wilderness. Nash explains that wilderness is a concept steeped in history and defined as much by what it is not as by what it is. In the beginning, wilderness was the antithesis of Eden. When society expelled its undesirable members, it cast them out into the wilderness. Yet Europeans subdued much of their wilderness, converting wild lands to a managed pastoral landscape long before most European explorers ever set foot on the “New World.”

To the first European settlers, the wilderness of the New World stood in stark contrast to the managed estates they left behind. America, to European settlers, was a wild, mysterious, and often dangerous place. There were no Gardens of Versailles, no rolling pastures, no neatly manicured croplands. The wilderness of the New World teemed with wild beasts not found in the Old World. This wilderness was also inhabited by Native peoples with whom European settlers often clashed. Europeans sought to build what John Winthrop called a city on the hill—a hill that both literally and metaphorically had to be cleared before that city could thrive.

With time, and as European settlers strengthened their toehold in the New World, the wilderness came to be seen less as threat and more as a frontier teaming with bounty. It became a place where manifest destiny could play out, where rugged individuals—ranchers, loggers, miners, and pioneers—could all seek their fortunes, and where the bounty was limitless. The intrepid pioneer flourished, as did railroads and mining magnates. Buffalo and passenger pigeons fell to our unbridled enthusiasm, and by 1890, the US Census Bureau had declared the frontier closed.

With time, growing economic prosperity, disenchantment with an increasingly urbanized life, and the allure of testing oneself led some back to the land. The likes of Aldo Leopold and John Muir extolled the virtues of wilderness, not just as a source of raw materials to fuel our growing nation, but also as a source of inspiration to nurture the soul. National leaders like Theodore Roosevelt and William O. Douglas championed the benefits of wilderness, while photographers from William Henry Jackson to Ansel Adams brought the beauty and grandeur home to urban-dwelling Americans. To many, wilderness became a restorative salve for the wounds of industrialization and over-civilization. Wilderness also became a treasure to be safeguarded and passed down to future generations. For still others, its transcendent worth grew from its import to nonhuman species and to its very existence, even for those who were unlikely to ever venture into the wild. Small w wilderness, in short, grew more abstract and removed from our earlier individual and immediate existence.

Evolving meanings of wilderness gave rise to desires for Wilderness protections, and in 1864, the federal government granted to the state of California what would eventually become Yosemite National Park.¹ That land was later converted into a national park, and in 1905, the park was returned to the federal government.² In 1872, President Ulysses S. Grant set aside lands near the headwaters of the Yellowstone River in Wyoming as the United States’ first national park.³ In 1924, the US Forest Service designated the first official wilderness area within the Gila National Forest of New Mexico (Coggins and Glicksman 2018, §25:1).

But the drumbeat of progress marched on, and epic battles between those intent on unlocking the economic riches that grow from or that reside just under the surface of our wild lands met the earnest cries of a populace growingly interested in protecting untrammeled landscapes. Developers won some battles: in 1923 the Tuolumne River was dammed, flooding the Hetch Hetchy Valley and part of Yosemite National Park. Construction of the Glen Canyon Dam began in 1956, flooding rugged and remote canyons on par with those of the Grand Canyon. But preservationists won, too, thwarting efforts to dam the Colorado River through the Grand Canyon and to dam the Green River through Dinosaur National Monument. The tension between preservation and development grew, and in 1964, passage of the Wilderness Act⁴ ushered in the era of big W Wilderness.

The Wilderness Act was the culmination of decades of effort to set aside from development a significant portion of those places that remained untouched by human hands. It was, and remains, the strongest tool in the conservation arsenal for protecting the small w wilderness values that have taken on such profound importance to many Americans.

With its passage, the Wilderness Act instantly designated fifty-four wilderness areas that encompassed 9.1 million acres across thirteen states. Wilderness areas are overlay designation, and today, the four main federal land management agencies—the Bureau of Land Management (BLM), US Forest Service, National Park Service, and US Fish and Wildlife Service—manage a combined 110 million acres of Wilderness. These wilderness areas overlay national parks, national forests, national wildlife refuges, and a host of other designations.

Once designated, wilderness areas are managed to preserve the area’s wilderness character and are “devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.”⁵ Wilderness areas are now highly valued as strongholds for biodiversity and for the ecosystem services that they provide. Except as otherwise authorized by the act or by subsequent legislation creating individual wilderness areas, roads, motorized vehicles or equipment, mechanical transport, and structures or installations are all prohibited within wilderness areas. Exceptions are allowed to accommodate valid existing uses, private land inholdings, and critical agency functions like wildfire suppression. ⁶

The act sets lofty goals: to “assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition.”⁷ In defining Wilderness, the act states:

Wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is . . . an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.⁸

In addition to converting all US Forest Service-managed “wilderness,” “wild,” and “canoe” areas into big W Wilderness, the act directed the secretary of agriculture to review all Forest Service “primitive” areas for possible inclusion in the Wilderness Preservation System. The secretary would make recommendations to the president, who would advise Congress on his recommendations for additions to the system. Congress would then act on those recommendations as it deemed appropriate because, under the act, only Congress can designate wilderness areas.⁹

The secretary of the interior was likewise charged with reviewing potential wilderness areas managed by the National Park Service and the US Fish and Wildlife Service, and to recommend to the president any such areas deemed suitable for Wilderness designation.¹⁰ As with National Forest System lands, the president would then submit recommendation to Congress, and Congress would make the final determination regarding Wilderness designations.

Public lands managed by the Bureau of Land Management were not addressed in the Wilderness Act, though the Federal Land Policy and Management Act of 1976 directed the secretary of the interior to inventory the lands under its control and to identify lands with wilderness characteristics. The secretary would then report to the president which of these areas were suitable for inclusion in the Wilderness Preservation System, the president would forward his recommendations to Congress, and Congress would make such additions to the system as Congress deemed appropriate.¹¹

Congress, of course, does not always act expeditiously on the recommendations brought before it, and both the Wilderness Act and the Federal Land Policy and Management Act include important interim protections for Wilderness-quality lands until Congress acts on presidential recommendations. Forest Service primitive areas in existence when the Wilderness Act was passed into law are subject to regulations protecting their wilderness attributes until Congress declares otherwise.¹² Similarly, BLM-managed lands that were recommended for Wilderness designation (known as wilderness study areas, or WSAs) are subject to a statutory obligation that management not impair their suitability for future Wilderness designation until Congress acts on those recommendations.¹³ Recommendations to designate millions of acres of Wilderness remain pending decades after those recommendations were first brought before Congress, and congressional inaction has created a class of lands that are effectively managed as Wilderness. These lands are called “de facto Wilderness” by their detractors.

Since 1964, the Wilderness Preservation System has grown to include 765 areas encompassing 110 million acres (171,883 square miles) across forty-four states and Puerto Rico. In 1980, the passage of the Alaska National Interest Lands Conservation Act marked the single largest addition to the system, expanding it by over 56 million acres. Overall, however, only about 5% of the United States (an area slightly larger than the state of California) is protected as Wilderness, and with over half of America’s Wilderness in Alaska, only about 2.7% of the contiguous United States (an area about the size of Minnesota) is protected as Wilderness (Wilderness Connect 2017). An additional 12.6 million acres of BLM land receives interim protection as part of a wilderness study area (Bureau of Land Management 2018). The Forest Service also manages approximately 58 million acres of inventoried roadless areas that, while not part of the Wilderness Preservation System, are generally closed to road construction or timber harvesting to protect small w wilderness attributes (Hoover 2018).

Additions to the Wilderness Preservation System and interim protections for lands that are subject to Wilderness designation proposals have been controversial. In 1972, the Forest Service began conducting its Roadless Area Review and Evaluation (RARE), which identified 56 million acres of land as eligible for Wilderness designation. But RARE recommended adding only 12.3 million acres to the Wilderness Preservation System (see Coggins and Glicksman 2018, §§25:15, 25:9). The environmental community harshly criticized RARE for ignoring suitable roadless areas, and for recommending permanent protections for only a small portion of eligible lands. While legal challenges to RARE were playing out, the Forest Service began updating its roadless review, effectively mooting much of the litigation.

In 1977, the Forest Service began its second review, known as RARE II, which proposed 15 million acres of Wilderness designations plus additional study for 10.8 million acres. Litigation again ensued, and much of that litigation was resolved over the years that followed, as Congress designated millions of acres that had been inventoried as eligible under RARE II as new wilderness areas. Other RARE II lands were released from further Wilderness consideration and reopened to development.

The roadless controversy reemerged in 1999, when the secretary of agriculture imposed a temporary moratorium on road construction in inventoried roadless areas. In 2001, the Forest Service issued the Roadless Rule, which prohibited road construction and timber harvesting on approximately 58 million acres of inventoried roadless areas. Nine lawsuits followed and were eventually resolved, with most of the 2001 Roadless Rule being upheld. Roadless areas in the Tongass National Forest, however, were temporarily withdrawn from protection under the Roadless Rule pursuant to a 2003 litigation settlement agreement, and that withdrawal was made permanent in a later federal rule.

The Bush administration, never happy with the 2001 Roadless Rule, issued what became known as the 2005 Roadless Rule, which allowed state governors to propose roadless area revisions within their states. Like its predecessors, the 2005 Roadless Rule found itself mired in litigation. Court of Appeals decisions in 2009 and 2011 reinstated the 2001 Roadless Rule, and in 2012, the US Supreme Court refused to review those decisions. Roadless Rule exemptions that applied to national forests in Alaska were also struck down and litigation appeared to be at an end when, in 2016, the Supreme Court again refused to take up the fight. But battles over roadless areas die hard, especially when old-growth timber in Alaska’s Tongass and Chugach National Forests are involved. On August 2, 2018, the Forest Service announced that it intended to issue a new “Alaska state-specific” Roadless Rule that will presumably attempt to open more National Forest System lands to logging. If past is prologue, that rule will surely face intense scrutiny.

BLM lands that have been inventoried as containing wilderness characteristics have also been mired in controversy. While ongoing obligations to inventory wilderness-quality lands and to update management provide flexibility to respond to new information or changed conditions, these continuing obligations also create a level of uncertainty that has not always sat well in communities with economies tied closely to resource extraction. Litigation has addressed whether the BLM has an ongoing obligation to inventory lands with wilderness characteristics as well as the BLM’s responsibility in managing lands that new inventories identify as possessing wilderness character.¹⁴ Some of the most contentious litigation has involved ownership of routes and roads across public lands. The state of Utah has been particularly aggressive in pursuing these claims, in part to thwart efforts to designate additional Wilderness, and in part to control activity in wilderness (see Coggins and Glicksman 2018, §15:19, which discusses litigation over title to roads and routes on public lands).

Other attacks on wilderness have proceeded on the theory that the Wilderness Act granted Congress the exclusive power to designate wilderness areas. Land management decisions and presidential designation that resulted in protection of wilderness character, some contend, impermissibly encroached on Congress’s power to designate wilderness areas. Chief among these was an unsuccessful 2004 challenge to the Grand Staircase-Escalante National Monument in Utah.¹⁵ That challenge brings us to the Antiquities Act of 1906.

The Antiquities Act and National Monuments

Congress enacted the Antiquities Act of 1906¹⁶ largely in response to looting of Native American sites in the American Southwest (Collins and Green 1978, p. 1055; Squillace 2003, p. 477). Congress realized that they were ill equipped to identify threatened public lands and sensitive resources, or to swiftly develop the site-specific protections those lands required. In passing the Antiquities Act, Congress therefore delegated to the president the discretionary authority to

declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments. . . . The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.¹⁷

Congress also endowed the president with the power to withdraw national monument lands from availability for future mineral development, homesteading, and other forms of land “disposal.”¹⁸ Such withdrawals are a standard part of all modern monument proclamations.

President Roosevelt designated Devil’s Tower, the iconic butte that rises dramatically from the prairie surrounding the Black Hills, as the nation’s first national monument on September 24, 1906. Since 1906, sixteen presidents—Republicans and Democrats alike—have used Antiquities Act authority to designate 157 national monuments across twenty-nine states, the District of Columbia, and several US territories (National Parks Conservation Association 2017). Congress has added national monuments forty-eight times and elevated monuments to a more protective status, normally that of a national park, on thirty-eight occasions (National Parks Conservation Association 2017). The Grand Canyon in Arizona, Arches in Utah, Olympic in Washington State, Acadia in Maine, and Grand Teton in Wyoming all began as national monuments (National Parks Conservation Association 2017). Sites indelibly inked in our nation’s history were also protected as national monuments—sites such as the Statue of Liberty, Pearl Harbor, Thomas Edison’s home and laboratory, and Harriet Tubman Underground Railroad.

National monuments differ from national parks in several important ways. First, while national parks are established exclusively by Congress, national monuments can be established by presidential proclamation. This allows the president to sidestep the legislative process and act more expeditiously, potentially over the objections of Congress. Second, Congress has codified into law directions that apply to all national parks: park managers are directed to preserve unimpaired natural and cultural resources and values of parks, and to provide for park enjoyment by the public.¹⁹ No such blanket management direction applies with respect to national monuments. Instead, presidents are free to impose the management direction they deem most appropriate. At the larger national monuments that are found mostly in the West, this has resulted in a trend toward management that retains a working landscape where livestock grazing continues, where hunting is allowed, and where visitor facilities are less developed.

Additional protections for national monuments come from inclusion in the National Landscape Conservation System, or NLCS. The NLCS includes national monuments, wilderness study areas, and components of the National Wilderness Preservation System that are managed by the BLM. In 2000, Secretary of the Interior Bruce Babbitt administratively created the NLCS as a way of shifting BLM culture toward protection of sensitive landscapes, coordinating management of conservation lands under a single office and emphasizing the importance of conservation as a component of the BLM’s mission. In 2009, Congress codified the NLCS into law, directing the secretary of the interior to manage lands within the system “in a manner that protects the values for which the components of the system were designated.”²⁰ Protection of national monument resources now represents the will of Congress as signed into law by the president.

While some monuments, like Grand Teton and the Grand Staircase-Escalante, were controversial at the outset, local communities generally grow to embrace the economic opportunities and amenities that national monuments provide. Indeed, monuments can be an economic engine for rural economies. But national monuments that stand to displace extractive activities like mining, logging, oil and gas development, or livestock grazing have provoked the ire of some local communities. On eight occasions, monument designations have been challenged in court, though no designation challenge has ever succeeded. In 1920, for example, the US Supreme Court upheld President Roosevelt’s designation of the 808,000-acre Grand Canyon National Monument (later expanded and elevated to national park status).²¹ The Supreme Court made quick work of arguments that the Grand Canyon was not an “object” within the meaning of the Antiquities Act, first affirming that the act empowered the president “to establish reserves embracing ‘objects of historic or scientific interest,’ ”²² and then holding that the Grand Canyon

“is an object of unusual scientific interest.” It is the greatest eroded canyon in the United States, if not in the world, is over a mile in depth, has attracted wide attention among explorers and scientists, affords an unexampled field for geologic study, [and] is regarded as one of the great natural wonders.²³

Fifty-six years later, in the only other national monument challenge to reach the Supreme Court, the court again gave objects of “historic or scientific interest” a broad reading, concluding that an endemic fish and the pool it inhabited in the Death Valley National Monument in California were objects of historic or scientific interest within the meaning of the Antiquities Act and therefore appropriately protected by a national monument designation.²⁴

While some recent national monument designations have been criticized as too big, and therefore as inconsistent with congressional intent to restrict monuments to the “smallest area compatible with the proper care and management of the objects to be protected,”²⁵ these arguments have never gained traction with the courts. At 808,000 acres (1,263 square miles), the Grand Canyon National Monument was obviously quite large, and that monument has since been expanded to over 1.2 million acres and elevated to national park status (Ruple 2019 discusses the history of national monument modifications and the multiple Grand Canyon expansions). By 1936, presidents had designated six monuments larger than 1,000 square miles without congressional objection, further solidifying the president’s power to create large monuments.

But the way monuments are proclaimed has changed over the past century. Early proclamations contain little more than the most basic identification of the resources to be protected, a rudimentary boundary description, and a perfunctory withdrawal of monument lands from homesteading and land disposal laws. Modern monument proclamations invariably include a lengthy description of the objects and values to be protected, their importance to science and humanity, and language that withdraws lands within a monument from availability for land disposal or future mineral development. Modern monument proclamations also frequently specify other requirements, like limitations on construction of new roads, that protect monument resources. More specific management requirements are developed through a planning process that normally begins shortly after monument designation.

The breadth of a president’s authority under the Antiquities Act creates a unique opportunity to tailor each monument proclamation to local issues and needs. For at least two decades, presidents have increasingly taken advantage of that authority. Recent monument proclamations are likely to recognize state primacy in water rights permitting and wildlife management; the ability to continue livestock grazing; and the importance of creating management plans in consultation with state, local, and tribal governments to ensure that those closest to the land have a voice in how that land is managed.²⁶ Recent monument proclamations also specifically address Native American use of forest products, firewood, and medicinal plants, where those issues have regional significance.²⁷

Flexibility and recognition of local concerns, however, are not always enough to avoid controversy. On December 4, 2017, and at the behest of Utah politicians, President Trump carved the 1.9-million-acre Grand Staircase-Escalante National Monument in Utah into three smaller monuments.²⁸ Together, the three replacement monuments protect just over half of the original monument’s area. On the same day, President Trump shrank the 1.3-million-acre Bears Ears National Monument, also in Utah, by approximately 85%.²⁹ The Grand Staircase-Escalante National Monument had been created by President Clinton twenty-one years earlier.³⁰ Bears Ears was but a year old, having been established at the behest of five Native American tribes shortly before President Obama left office.³¹ It was the first national monument ever designated at the behest of tribal governments.

President Trump’s actions reflect the two largest reductions to a national monument that have ever been made by a president, and they open lands excluded from the monuments to mineral exploration and development. The five Native American tribes that had proposed Bears Ears, as well as multiple scientific, conservation, and environmental organizations, quickly sued to invalidate President Trump’s reductions to Bears Ears. Legal challenges to the reductions to the Grand Staircase-Escalante National Monument also came almost immediately, setting up a battle over the authority granted to the president in the Antiquities Act that appears destined for Supreme Court review. ³²

The monuments’ defenders contend that the Property Clause of the US Constitution endows Congress with power over public lands, and with it, the power to create and revise national monuments. They then argue that in passing the Antiquities Act, Congress delegated to the president the power to create national monuments, but that Congress never bestowed the president with the power to radically reduce monuments. The lack of a grant of power to revise national monuments is not surprising, they argue, as there was no need for such delegation. While exigencies necessitated quick action to protect lands, no similar urgency demands expedited monument reduction. Had Congress intended to grant a two-way grant of power, it would have said so clearly, as it did in other statutes empowering presidents to both create and revise other designations involving the public lands. The plaintiffs also point out that in 1976 Congress enacted the Federal Land Policy and Management Act, which comprehensively rewrote federal public land law, expressly reigning in the president’s implied powers over public lands. For further discussion of the legal arguments for and against monument reductions, see Ruple (2019).

Supporters of President Trump’s reductions counter that in passing the Antiquities Act, Congress did not expressly deny the president the power to revise boundaries. At a minimum, the president should be able to reduce a monument to ensure that it is “confined to the smallest area compatible with the proper care and management of the objects to be protected.” They also argue that, absent an express prohibition, courts should look to congressional acquiescence in twenty or so prior presidential reductions to national monuments, which gives the presumption of a president’s power to revise a national monument. President Trump, in reducing the two monuments, also argued that the designations were unnecessary, as other laws provide adequate protection for monument resources (Ruple 2019).

Arguments that national monument lands and resources are adequately protected by other laws strain credulity by ignoring that two million acres that were previously closed to mineral development are now open for mining as well as oil and gas development.³³ Thousands of archaeological and paleontological sites were also excluded from the two monuments, and that exclusion directly affects legal protections (Ruple et al. 2018). Congress, in codifying the National Landscape Conservation System, which includes national monuments managed by the Bureau of Land Management, expressly directs the BLM to protect the values that led to monument designation.³⁴ That direction disappeared for those lands excised from the monument.

Reliance on congressional acquiescence in prior reductions, however, is more appealing. As proponents of monument reduction note correctly, presidents have revised and reduced monuments on eighteen prior occasions. But a closer look is telling: most prior reductions corrected errors in the description of the objects being protected or in describing their surrounding landscape. Other revisions excluded from a monument private land and infrastructure that predated the monument’s designation. Still other reductions occurred in conjunction with concurrent additions of land to the same monument, improving protection for the objects identified in the original monument proclamations. Finally, on three occasions, reductions responded to the existential threats posed by World Wars I and II. None of these prior reductions appear to provide much justification for more recent events, which seem to be driven by a policy preference for energy development over conservation. Similarly, while congressional acquiescence in prior monument reductions may arguably have endowed the president with such powers, the passing of more than a half century since the last reduction may imply that such powers, if they existed at all, have withered on the vine. And even if that power survived, presidential powers were reined in by the Federal Land Policy and Management Act of 1976. (For a review of all prior national monument reductions authorized by US presidents, see Ruple et al. 2018.)

How the courts resolve these questions has tremendous import for our public lands. If President Trump’s actions are upheld, the presumptive permanence of national monuments evaporates, and every national monument becomes subject to revision at the whim of future administrations. Congress unquestionably has the power to resolve the dispute by restoring the two monuments or by affirming their reductions. Congress also can define presidential powers under the Antiquities Act in ways that prevent the recurrence of these debates. Congress, unfortunately, appears reluctant to wade into the fray.

We are left with the tensions noted at the beginning of this chapter: those between the competing American ideals of harvesting nature’s bounty for the betterment of civilization, preserving wild places for future generations, and considering nature as a source of inspiration to nurture the soul. It is a tension that is playing out across the spectrum of public land management, and it appears destined to become only more contentious as a growing population competes for finite resources.

Legal Citations

1. Stat. 325–26 (1864).
2. Joint Resolution: Accepting the recession by the State of California of the Yosemite Valley Grant and the Mariposa Big Tree Grove in the Yosemite National Park, S.J. Res. 115, 58th Cong. (enacted) reprinted at 33 Stat. 1286 (1905).
3. 17 Stat. 32–33 (1872).
4. 16 U.S.C. §§ 1131–36.
5. 16 U.S.C. § 1133(b).
6. 16 U.S.C. § 1133(c).
7. 16 U.S.C. § 1131(a).
8. 16 U.S.C. § 1131(c).
9. 16 U.S.C. § 1132.
10. 16 U.S.C. § 1132(c).
11. 43 U.S.C. § 1782.
12. 16 U.S.C. § 1132(b).
13. 43 U.S.C. § 1782(c).
14. Oregon Natural Desert Ass’n v. Bureau of Land Management, 625 F.3d 1092 (9th Cir. 2010).
15. Utah Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004).
16. 54 U.S.C. §§ 320101–303.
17. 54 U.S.C. §§ 320310(a) and (b).
18. 54 U.S.C. § 320310(a) and (b).
19. 16 U.S.C. § 1.
20. 16 U.S.C. § 7202(c)(2).
21. Cameron v. United States, 252 U.S. 450 (1920).
22. Cameron v. United States, 252 U.S. 450 (1920).
23. Cameron v. United States, 252 U.S. 450 (1920), 456.
24. Cappaert v. United States, 426 U.S. 128, 142 (1976).
25. 54 U.S.C. § 320301(b).
26. See, e.g., Proclamation No. 9297 (Basin and Range National Monument, recognizing state water rights); Proclamation No. 9232 (Browns Canyon National Monument, recognizing state authority over wildlife management); Proclamation No. 6920 (Grand Staircase-Escalante National Monument, maintaining existing livestock grazing); and Proclamation No. 9298 (Berryessa Snow Mountain National Monument, coordinated planning with state, local, and tribal governments).Wilderness Society v. Donald J. Trump, 1:17-cv-02578 (D. D.C.) (consolidated Grand Staircase-Escalante cases); and Hopi Tribe v. Donald J. Trump, 1:17-cv-02590 (D. D.C.) (consolidated Bears Ears cases).
27. See, e.g., Proclamation No. 9194 (San Gabriel Mountains National Monument) (guaranteeing monument access for “traditional cultural, spiritual, and tree and forest product-, food-, and medicine-gathering purposes”); Proclamation No. 8946 (Río Grande Del Norte National Monument, “ensure the protection of religious and cultural sites in the monument and provide access to the sites by members of Indian tribes for traditional cultural and customary uses,” and “traditional collection of firewood and piñon nuts in the monument for personal non-commercial use consistent with the purposes of this proclamation.”); and Proclamation No. 8868 (Chimney Rock National Monument, “protect and preserve access by tribal members for traditional cultural, spiritual, and food- and medicine-gathering purposes, consistent with the purposes of the monument, to the maximum extent permitted by law.”).
28. Proclamation No. 9682, 82 Fed. Reg. 58089 (Dec. 4, 2017).
29. Proclamation No. 9681, 82 Fed. Reg. 58081 (Dec. 4, 2017).
30. Proclamation No. 6920, 61 Fed. Reg. 50223 (Sept. 18, 1996).
31. Proclamation No. 9558, 82 Fed. Reg. 1139 (Dec. 28, 2016) (Bears Ears National Monument).
32. Wilderness Society v. Donald J. Trump, 1:17-cv-02578 (D. D.C.) (consolidated Grand Staircase-Escalante cases); and Hopi Tribe v. Donald J. Trump, 1:17-cv-02590 (D. D.C.) (consolidated Bears Ears cases).
33. Proclamation No. 9681, 82 Fed. Reg. 58081 (Dec. 4, 2017), at 58085; Proclamation No. 9682, 82 Fed. Reg. 58089 (Dec. 4, 2017), at 58093-94.
34. U.S.C. § 7202(c)(2).

References

Bureau of Land Management. 2018. Public Land Statistics 2017. Washington, DC: Bureau of Land Management, Department of the Interior. (↵ Return)

Coggins, George Cameron, and Robert L. Glicksman. 2018. Pub. Natural Resources Law, vol. 3. 2nd ed. (↵ Return 1) (↵ Return 2) (↵ Return 3)

Collins, Robert Bruce, and Dee F. Green. 1978. “A Proposal to Modernize the American Antiquities Act.” Science 202 (4372): 1055–59. (↵ Return)

Hoover, Katie. 2018. Federal Lands and Related Resources: Overview and Selected Issues for the 115th Congress. CRS Report R43429. Washington, DC: Congressional Research Service. (↵ Return)

Nash, Roderick Frazier. 2014. Wilderness and the American Mind, 5th ed. New Haven, CT: Yale University Press. (↵ Return)

National Parks Conservation Association. 2017 “Antiquities Act Designations and Related Actions.” Updated January 13, 2017. https://www.npca.org/resources/2658-monuments-protected-under-the-antiquities-act. (↵ Return 1) (↵ Return 2) (↵ Return 3)

Ruple, John C. 2019. “The Trump Administration and Lessons Not Learned from Prior National Monument Modifications.” Harvard Environmental Law Review 43: 1–76. (↵ Return 1) (↵ Return 2) (↵ Return 3)

Ruple, John C., Michael Henderson, and Ceci Caitlin. 2018. “Up for Grabs—the State of Fossil Protection in (Recently) Unprotected National Monuments.” Georgetown Environmental Law Review Online, October 5, 2018.  https://www.law.georgetown.edu/environmental-law-review/blog/up-for-grabs-the-state-of-fossils-protection-in-recently-unprotected-national-monuments/. (↵ Return 1) (↵ Return 2)

Squillace, Mark. 2003. “The Monumental Legacy of the Antiquities Act of 1906.” Georgia Law Review 37: 473–610. (↵ Return)

Wilderness Connect. 2017. “About Wilderness.” Last modified December 12, 2018. http://www.wilderness.net/NWPS/fastfacts. (↵ Return)