Biden's abuse of the Antiquities Act is a classic case of executive overreach
Because of the massive power concentrated in the hands of the president, Americans like Chris Heaton live in constant uncertainty about the future.
This month, President Biden used his executive power to expand two national monuments in California: Berryessa Snow Mountain National Monument and San Gabriel National Monument. Altogether, the president set aside an additional 120,000 acres of federal land for special protection under the Antiquities Act — an area slightly larger than the city of San Jose, Calif.
The Antiquities Act allows the president to unilaterally protect nationally significant objects by designating them as national monuments. It requires designations to be limited to the “smallest area compatible” with their protection. This power has been abused. New research from Pacific Legal Foundation shows how this undemocratic process lacks checks and balances and harms real people’s livelihoods.
Because the federal government owns 28 percent of U.S. land, it’s essential (and required by law) that public lands be used for productive purposes like mining, logging or grazing and recreation. Federal lands produced 25 percent of U.S. crude oil, 10 percent of natural gas, and 45 percent of coal in 2021. Federal lands also comprise 64 percent of our geothermal energy capacity and significant solar and wind production.
But presidential proclamations typically restrict the use of natural resources on federal land. While they respect existing grazing or mining rights, they usually prevent future resource development. That’s an existential threat for Americans whose livelihood depends on federal lands.
The Heaton family has ranched on the Utah-Arizona border for six generations. But when President Biden designated the Ancestral Footprints National Monument in Northern Arizona, he created real uncertainty about the future of that legacy. The Heatons are suing the federal government, represented by the Pacific Legal Foundation at no charge, to ensure their grazing rights are honored and that they won’t be subjected to criminal penalties when their cattle graze.
Because of the massive power concentrated in the hands of the president, Americans like Chris Heaton live in constant uncertainty about the future.
This concentrated power allows special interest groups to lobby the president for new monuments, for which they spend millions. Like in 2016, when President Obama designated Bears Ears National Monument after groups including the Leonardo DiCaprio Foundation, the Wyss Foundation, and the Grand Canyon Trust spent over $20 million lobbying for its creation.
Monument boundaries are often drawn around areas with high resource potential. For example, in 2023, President Biden designated nearly 1 million acres as the Ancestral Footprints of the Grand Canyon National Monument. The monument boundaries were drawn around an area rich with uranium deposits, a necessary material for carbon-free nuclear energy. Instead, the U.S. must rely on Russia and former Soviet-bloc countries like Kazakhstan for its uranium supply.
National monuments have also been designated to shut down commercial fishing, an essential livelihood for fisherman in the Northeast. In 2017, President Obama established 5,000 square miles of the Atlantic Ocean as a national monument — an area nearly the size of Connecticut. In doing so, he shut down commercial fishing for people who had relied on this trade for generations. The Antiquities Act was meant to protect discrete objects on dry land, not to lock up entire oceans.
Instead of serving its intended purpose, the Antiquities Act has become a political tool used by the executive branch that removes entire ecosystems and landscapes from productive use. Since the act was passed, presidents have designated over 844 million acres of land and water as national monuments. Over 90 percent of those acres were designated since the year 2000.
The Antiquities Act must be reformed. Congress must restore the proper checks and balances. Withdrawing millions of acres of public land from productive use should require more than one person’s signature.
Megan Jenkins is strategic research director, and Keelyn Gallagher is a strategic research analyst, at Pacific Legal Foundation, a public interest law firm that defends Americans' liberty against government overreach and abuse.