Chapter 11:
The Antiquities Act and the Modern Park System (continued)
The battle over the Jackson Hole National Monument
was the last of the first generation of conflicts between the interests
of conservation/preservation and unregulated use of land. Wyoming pitted
its rights as a sovereign state against those of the federal
governmenta battle not unlike the one Ralph Henry Cameron had
fought against the Park Service at the Grand Canyonand lost.
Despite vindication of their position, Park Service officials recognized
the importance of good relations with individual states. The agency had
further objectives in the region and used the legal victory as a place
from which to negotiate a compromise.
As a result, the court case served as an indirect
prelude to the abrogation of the Antiquities Act. During the late 1930s
and 1940s, other park projects created controversy in Congress. The Park
Service lost much of its support in Congress as a result of weak
leadership, attrition, and retirement. The need for the development and
interpretation of new park areas made the Antiquities Act a less
formidable tool for preservation. Coupled with the unfavorable coverage
the entire Jackson Hole episode generated, congressional uproar and
greater public expectations made agency officials reconsider its
assumptions about further expansion of the national park system.
The discovery phase of American preservation ended
before the beginning of the New Deal, and the Antiquities Act became an
anachronism that recalled the Progressive-era values that shaped the
early years of the agency. Between 1906 and 1944, the hegemony that
invested the presidency with unlimited authority broke down. The rush
also went out of the reservation of park areas. New additions were no
longer established just ahead of bulldozers and dam builders. Money for
developing areas other than national parks became available. As the
Park Service realized the value of all its different categories of areas
and developed the kinds of programs that built and sustained an
infrastructure, it spread its resources more evenly among the park
system. Cooperation with Congress became critical to the future of the
system, and the appeal of the advantages of the Antiquities Act
diminished. In an environment where the pronouncement of the
establishment of an area meant less than its subsequent development,
limits on uses of the Antiquities Act became inevitable.
Although in 1943 Earl Warren, then the governor of
California, suggested to a conference of western governors that they
work together to abolish the Antiquities Act and Wyoming senator Joseph
O'Mahoney cosponsored a bill in the Senate to that end, the abrogation
of the Antiquities Act came only in 1950. The heated exchanges of
earlier years cooled considerably in the postwar climate, and the
participants negotiated an amicable compromise. What the NPS and the
president sacrificed to acquire the new and enlarged Grand Teton
National Park, which included the disputed Jackson Hole National
Monument, was the right to use the Antiquities Act within the boundaries
of the state of Wyoming. [22]
The NPS gave up little in the compromise, for the
role of the Antiquities Act had already diminished. After the division
into regions in 1937, the Park Service gradually ceased to use the
designation of an area to determine its value to the system. The manner
in which an area entered the system became less important than its
potential, and because most of the important areas in the public domain
had long before been scrutinized for membership in the park system, the
legal limits upon its use were no greater than the restrictions the
agency placed upon itself.
Under this kind of integrated management, the
monuments fared better than they ever had. The last vestiges of
second-class status for the national monuments disappeared with the
initiation of Mission 66, a ten-year capital improvement program
designed to rejuvenate the park system in honor of the fiftieth
anniversary of the Park Service in 1966. Mission 66 financed capital
development programs in all categories of park areas. More than 2,000
miles of roads were built or improved, and the modern visitor centers
that highlight many park areas were also developed. [23] Another ramification was the development
of new criteria for assessing the needs of park areas. Designation
ceased to be of paramount importance; instead, the popularity of an area
with the public became a more accurate measure of its position within
the system.
During and after Mission 66, distinction between
categories of NPS areas became nearly indistinguishable. No longer were
monuments slighted because they remained in the monument category;
publicity, appropriation, and maintenance were determined more by need
than by the nomenclature of an area. Yet later national monuments formed
the basis for the creation of new national parks, as did the way-station
monuments of the 1910s and 1920s. Older national monuments, such as the
petrified Forest and Arches, became national parks; other areas, such as
Chaco Canyon, which went from national monument status to that of
national historic park, also acquired new designations in the constant
attempts of the Park Service to lend even a peripheral sense of
cohesiveness to the elements that comprised the system. A plethora of
categories were available and the title of national monument, when
bestowed by a Congressional bill, was increasingly reserved for areas
that showed something of pre-European physical or cultural life on this
continent. [24]
The new additions to the system were different than
their predecessors at the turn of the century. In the continental United
States, new park areas were rarely undiscovered. Most often they
represented a change in emphasis by the agency or Congress, or a
reevaluation or recognition of the resource that the area contained. The
excitement of urgency left the preservation process, and additions to
the system became part of a process of choosing between similar
alternatives. Particularly after the civil and women's rights movements
of the 1960s and 1970s, areas that the Park Service would not have
recognized as significant in 1920 became important additions to the
system. As the message of the park system changed to fit the times, the
areas added to it reflected new values. The process of determining
appropriate new areas became more selective, yet somehow less critical
to the survival of the system. The pressure was off the Park Service and
it ceased to have to rely on the instincts of its leaders.
Yet more and more, the restrictions upon park areas
came from outside the agency. The insistence of Congress on maintaining
control through appropriations effectively prevented the Antiquities Act
from being an important weapon in the preservation arsenal. The use of
the Antiquities Act was no longer the primary way to preserve a worthy
location; instead it became an emergency step used when all other means
had failed. If the NPS was to receive funding for a monument authorized
by the Antiquities Act, the Interior and Insular Affairs Committee of
the U.S. House of Representatives often insisted that the agency request
and receive its approval prior to the issuance of a proclamation. Only
upon receiving committee approval would budgets for newly established
areas be sanctioned. As a result, after 1950 most new national monuments
were created by Congress and the Antiquities Act was invoked for their
proclamation. Rare occasions saw presidents use the discretionary power
that the Antiquities Act offered.
There were, however, a number of cases in which
executive fiat made a mockery of any legislative attempts to control the
establishment of new areas or even the type of park area labelled a
national monument. During each of the Eisenhower, Johnson, and Carter
administrations, the NPS and the Department of the Interior made at
least one use of the Antiquities Act without the prior sanction of
Congress, recalling vividly the administrations of Theodore Roosevelt
and Franklin D. Roosevelt, as well as other presidents who regarded
executive power over the public domain as an important part of their
responsibility. Each attempt created problems, even with members of the
president's own party.
Two of the most significant cases of executive
proclamation, the establishment of the Chesapeake and Ohio (C & O)
Canal in 1961 and the Marble Canyon in 1969, were lame-duck
proclamations, following the tradition begun by Theodore Roosevelt with
the Mount Olympus National Monument and elevated to an art form by
Herbert Hoover after his defeat by Franklin D. Roosevelt in 1932. [25] Another group of important national
monuments proclaimed without congressional approval since 1950, the
"d-2" group established in Alaska in 1978, mirrored earlier cases where
threats of exploitation loomed large. In all cases, at the request of
the NPS and the Department of the Interior, the president proclaimed as
national monuments areas Congress had considered but had not made
national parks. These were maneuvers of the Jackson Hole National
Monument variety, the establishment by fiat of areas that Congress would
not otherwise reserve.
The establishment of the C & O Canal National
Monument in 1961 ended nearly a decade of debate about the character of
the park area for that locale. Initial NPS proposals were to develop a
parkway, but due to citizen initiative led by Supreme Court Justice
William O. Douglas, the canal was ultimately established as a walkway
rather than as a road. After nearly seven years of discussion and with
the inauguration of John F. Kennedy approaching, Dwight D. Eisenhower
attempted to resolve the situation with the establishment of a national
monument in the final hours of his administration. [26]
Congressman Wayne Aspinall, the chairman of the House
Committee on Interior and Insular Affairs, disapproved of such bold
executive action. Aspinall's position was that since Congress had to
appropriate money for the upkeep of the C & O Canal, no matter how
the law read, the legislative branch was entitled to input in the
process. Aspinall took a hard-line position, stating that if the
president was going to circumvent Congress, then he was going to have to
pay for the activation and subsequent needs of any such area out of his
own pocket.
Eisenhower's proclamation did not give the Park
Service everything it wanted. As in many cases, the initial proclamation
was a short-term solution designed to enable further development of the
area. It began the process of transforming the C & O Canal to
national historic park status, which required congressionally
appropriated funds. Aspinall stuck to his position and throughout the
1960s refused to fund development of the park. In effect, the powerful
congressman annulled most of the power that remained in the Antiquities
Act; any future use of the act unsanctioned by Congress was sure to
create controversy. Although rarely used during the prior decade, after
the C & O Canal controversy, the Antiquities Act became a measure
reserved for emergency or lame-duck situations. [27]
It took less than a decade for the legislative and
executive branches to clash over the Antiquities Act once again. During
the "lame-duck" portion of his term in 1969, Lyndon B. Johnson
established the Marble Canyon National Monument as part of a program to
leave a final legacy of his term. Secretary of the Interior Stewart
Udall recommended the reservation of large areas of Alaska as well as
the fifty-mile area between the Grand Canyon National Park and Glen
Canyon National Recreation Area as additions to the National Park
System. Johnson apparently was ready to use the Antiquities Act to
proclaim nearly eight million acres of national monuments, but in what
has been called a "series of excruciating coincidences," the original
plan was altered and the one eventually enacted added less than half a
million acres to the system. [28]
In December 1968, Richard Nixon announced his new
Secretary of the Interior, Gov. Walter Hickel of Alaska. Like the West
at the end of nineteenth century, Alaska had been a hotbed of
anti-conservationism. Many Alaskans felt that there was too much
government intervention in the affairs of their state, and Hickel would
have to serve his constituency. His appointment put the sizable Alaskan
part of the project in doubt. President Lyndon B. Johnson wondered
whether the Governor would offer any support for the new parklands in
his state and used this as a reason to delay the proclamation.
The NPS continued to prepare for the reservation of
the lands that Udall recommended. Agency officials believed the
President would go forward with the proposed proclamations on 19
December 1968 as a "conservation Christmas gift to the nation." One day
before the scheduled proclamations, Johnson became ill with the flu. The
proclamations were again postponed, but the NPS still had reason for
hope. In his final State of the Union address on 14 January 1969,
Johnson announced: "there is more [parkland] going to be set aside
before this administration ends." [29]
But Udall had not cleared the project with all the
pertinent people on Capitol Hill. The congressional delegations of the
states involved received briefings. Senator Henry Jackson of Washington,
Chairman of the Interior and Insular Affairs Committee in the Senate,
pledged his support; his counterpart in the House of Representatives,
Wayne Aspinall, had not been informed. Despite his stance on the
Chesapeake and Ohio Canal, Aspinall had helped the Park Service in a
number of situations; he was instrumental in preventing a compromise
which would have allowed mining in Canyonlands National Park. But as the
C & O Canal showed, he was also a staunch advocate of congressional
jurisdiction over the establishment of areas that required funds from
Congress. From Aspinall's point of view, the proclamation was an attempt
to "by-pass Congress." [30]
The legislative and executive branches were prepared
to do battle over the President's right to exercise power granted him by
the Antiquities Act. From Udall's point of view, the proclamation
offered the last chance for the addition of important lands to the Park
System under a sympathetic administration, and the Antiquities Act was
the only remaining tool that served the purpose. From Aspinall's
perspective, it was an arrogant challenge to congressional authority and
a blatant usurpation of the powers of the legislative branch. He
objected on principle to the manner in which the lands were established,
not to the reservation of the land itself. In essence, the battles of
the early twentieth century were recast in the terms of the 1960s.
But even as a "lame duck," Lyndon Johnson could not
afford to be as cavalier with Congress as could Theodore Roosevelt. As
he threatened, Aspinall could prevent the appropriation of funds for as
long as he remained in Congress. With control over that crucial element
of the preservation process in the hands of an angry Congress, the new
areas might have become nonexistent entities, similar to the national
monuments before Frank Pinkley brought them to prominence. In the end,
an unhappy compromise was reached. The Marble Canyon National Monument
was established, and almost 350,000 acres were added to existing park
areas in Alaska, but the additions fell far short of the nearly 8
million acres that Udall proposed. Among the costs of the endeavor was
the creation of an adversarial relationship between the ex-president and
his former secretary of the interior. [31]
Sixty-three years after its passage, the Antiquities
Act remained a point of contention between the president and Congress.
Its capricious powers continued to present adamant presidents and agency
directors with a direct way to achieve desired goals. Its broad powers
offered solutions in seemingly irresolvable situations. It remained a
"court of last resort" in public domain matters so long as the
president, the secretary of the interior, and the NPS were willing to
face the consequences of an alienated and often furious Congress.
The most recent use of the Antiquities Act, the
proclamation of large sections of Alaska as national monuments by Jimmy
Carter in 1978, fit the pattern established for the use of aggressive
executive power since 1950. Like the proclamation of Muir Woods and many
other early national monuments, the establishment of the Alaskan
national monuments was a response to the threat that lands reserved
under the section 17 (d)(2) provision of the Alaska Native Claims
Settlement Act of 1971 would revert to public domain or state control
and eventually be sold for commercial purposes. Like the temporary
withdrawals made by the GLO at the end of the nineteenth century, the
d-2 lands were reserved so that they could be sorted into appropriate
categories when Congress could agree on the proper way to complete the
project.
The withdrawal in 1978 paved the way for "lame-duck"
congressional establishment of what has been called the "Alaskan
National Park System" in 1980. More than a stopgap measure, Jimmy
Carter's proclamations sprang from the same vision of governmental
responsibility that motivated the decisions of Theodore Roosevelt,
Herbert Hoover, and Franklin D. Roosevelt. Faced with the need for swift
and decisive action in the national interest, Carter used the aggressive
and arbitrary power willed him by an earlier generation of American
leaders.
The Alaskan Native Claims Settlement Act of 18
December 1971 authorized the secretary of the interior to select up to
80 million acres of public land in Alaska for possible inclusion in
federal land reservation systems. The law gave the secretary two years
within which to make his recommendations and an additional five beyond
the original two for Congress to act upon the suggestions. In 1973,
Secretary Rogers C. B. Morton made his recommendations, which included
32.3 million acres for the national park system.
Bills for and against the proposal made little
progress until the 1977-78 session of the 95th Congress, when Morris K.
Udall introduced H.R. 39. A compromise version of Udall's bill passed
the House on 18 May 1978, but Alaskan senators Mike Gravel and Ted
Stevens prevented action on a similar bill in the Senate. With no
successful action during the 95th Congress and 18 December 1978, the
date upon which the withdrawn lands would revert to the public domain,
approaching, the only remaining tool available to change the temporary
withdrawals into permanent ones was the Antiquities Act. On 1 December
1978, Jimmy Carter proclaimed fifteen new national monuments, eleven
under NPS jurisdiction and two each for the Forest Service and the Fish
and Wildlife Service. [32]
In a situation recreating the urgent conditions for
which it had been passed, the Antiquities Act once again became the most
effective and expedient way to achieve preservation goals. Congressional
disapproval was a smaller problem with areas in Alaska than it would
have been elsewhere. Like the inaccessible monuments at the turn of the
century, many of the "d-2" national monuments were remote enough to be
insulated from the threats of depredation and vandalism. As were their
counterparts eighty years earlier, the new Alaskan monuments were more
susceptible to legal encroachment: land claims, energy exploration, or
commercial exploitation of another kind. But once reserved, they could
exist safely with minimal funding for maintenance and upkeep, a fact
that put their creation beyond the control of Congress. The Alaskan
national monuments were "pre-created" as protection against future
growth and exploitation. They ensured the availability of parkland when
it became necessary.
As did earlier "waystation" monuments, the Alaskan
monuments became national parks during the "lame-duck" session following
a president's ouster. Jimmy Carter's defeat in 1980 was the catalyst for
the transformation. Alaskan senators had fought proposals every step of
the way, and their efforts limited the chances of park bills. On 19
August 1979, a more limited conservation measure than earlier House
bills passed the Senate. Feeling their power ebb after the election of
Ronald Reagan, advocates orchestrated a compromise. Rather than risk an
even less comprehensive piece of legislation under the incoming Reagan
administration, House supporters accepted the more limited Senate bill
on 12 November 1980. On 2 December, Jimmy Carter signed into law the
Alaskan National Interest Lands Conservation Act [ANILCA]. Under its
terms, a total of 47,080,730 acres were added to the national park
system. [33]
Carter's use of the Antiquities Act in the Alaskan
situation revealed that the law remained a viable way to achieve
short-term preservation goals. It was available as a means to rapidly
reserve threatened land; a sort of peacemaker, the Antiquities Act
bought time for the National Park Service, the Department of the
Interior, the president, and Congress. It permitted an intelligent
decision to be made regarding the permanent status of the various lands,
for it gave the conflicting parties the opportunity to work out the
details to the satisfaction of most of the participants.
In many ways, the Alaskan national monument
proclamation was in keeping with the uses of the Antiquities Act. Early
uses of the act had made the diverse national park system of today
possible; the more than 45 million-acre Alaskan reservation laid the
basis for the national park system of the future. The same bold
executive action that protected the Grand Canyon, Muir Woods, the Teton
biota, and similar areas initiated the reservation of the inaccessible
yet spectacular land in Alaska. The remote and forgotten monuments of
the 1920s are on the visiting list of millions of American tourists
today. In the coming decades, the Alaskan parks may be the salvation of
the increasingly threatened park system.
Once again, the Antiquities Act has given the United
States a new national park system into which to grow, much the way it
provided the legal authorization for the system of today. Even when
Congress passed the Archaeological Resources Protection Act of 1979,
which rectified many of the shortcomings of the Antiquities Act, the
section in the earlier law that authorized the president to proclaim
national monuments remained unchanged. As it was designed to do in 1906,
the Antiquities Act remains a way, albeit a controversial one, to put
the interests of the general public ahead of those of any individual
group of constituents.
In the rare cases in which it has been used by the
president since 1950, the Antiquities Act has usually filled a gap much
as it did at the turn of the century. The certainty of its powers and
the speed with which it can reserve land in the public domain make it a
unique piece of legislation from conservation and preservation
perspectives. The Antiquities Act is a reminder of the executive
discretion in the name of the greater good with which the United States
once trusted its presidents; despite periodic uses rightly termed
excessive, its legacy is generally one of placing the future of the
nation over the present needs or desires of individuals. It is an
important indication of the social obligation American leaders once felt
to maintain the physical and cultural features in this country for the
benefit of all Americans.
The unique category of park areas it established, the
national monuments, have been poorly understood since their inception.
Initially conceived to preserve archaeological ruins, the category grew
to include the broadest range of areas ever reserved by a government for
its people. Evolving into an integral part of the federal preservation
of the natural and human past on this continent, the national monuments
are truly monuments; their existence reminds Americans of the need to
remember the past as well as of the necessity of preparing for a
long-term future. Of aesthetic and cultural value, the national
monuments are testimony to a vision of social responsibility shared by
American leaders of an earlier time.
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