Spencer J. Cox: Chief justice offers encouragement for monuments reform

Two weeks ago, U.S. Supreme Court Chief Justice John Roberts offered a fascinating and unexpected commentary on the Antiquities Act, the 1906 law that allows presidents to create national monuments without congressional approval. His words startled some in the environmental community and heartened those of us who are troubled by the way presidents have abused the Antiquities Act for many decades.

The case in question involved Massachusetts’s Northeast Canyons and Seamounts Marine National Monument, but the chief justice wrote more broadly about national monuments that are far larger than necessary. Not only did he criticize the use of the law “to set aside vast and amorphous expanses of terrain above and below the sea,” but he laid out a roadmap for how the court might rein in the authority and return to the Antiquities Act’s seemingly forgotten requirement that presidentially created monuments “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

That’s a very welcome message for states with gigantic monument designations we didn’t ask for.

For the past 25 years, Utah has been the unwilling host to the most contentious and divisive monument battles in recent U.S. history. The first occurred in 1996 when President Bill Clinton, over the objections of state and local leaders and the majority of Utahns, locked up 1.8 million acres of southern Utah — an area larger than the state of Delaware — as the Grand Staircase-Escalante National Monument. The story had a bad sequel in 2016 when President Barack Obama, again over the objections of state and local leaders, created the 1.3 million-acre Bears Ears National Monument in southeastern Utah.

Despite various myths, distortions and straw men arguments, everyone agrees with the need to conserve and protect these archeologically and culturally significant lands. The question is whether a unilateral presidentially created monument is the right approach. The designation of a monument dramatically increases visitation to sensitive areas without funding or developing any of the necessary protections — law enforcement, signage and interpretive sites to accommodate those visitors without endangering the antiquities.

Although President Donald Trump reduced the size of both the Grand Staircase and Bear Ears monuments in 2017, that didn’t solve the fundamental problem — huge land decisions shouldn’t be subject to presidential fiat. It’s bad policy and as Roberts suggested, the Antiquities Act simply didn’t grant such sweeping authority. Big decisions that impact the lives and livelihoods of those who live near these lands should be debated and worked out through the legislative process that requires input from local voices and which can produce a permanent solution rather than a temporary fix that makes one side the loser and which can be changed every time the White House switches parties.

This is precisely what I and other Utah leaders have recommended to Interior Secretary Deb Haaland and President Joe Biden as they consider whether to expand both Utah monuments again. I am deeply grateful to Haaland for visiting Utah last week and listening to our concerns. She was gracious and committed to hearing all the voices, including those who support a large monument and those who don’t. We believe we can find a compromise for the monuments that will benefit everyone, but that will require her and President Biden to work with Utah’s leaders and through Congress rather than acting unilaterally under the Antiquities Act.

We think that’s the best outcome — a legislative solution — and we stand ready to work with the Biden Administration if they take us up on the offer. But if not, we think both the Grand Staircase-Escalante and Bears Ears National Monuments epitomize abuse of the Antiquities Act and represent the perfect cases to explore the chief justice’s overture.

Spencer J. Cox, a Republican, is governor of Utah.