America's National Monuments
The Politics of Preservation
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Chapter 11:
The Antiquities Act and the Modern Park System

IN MANY WAYS, the New Deal reinvented the federal system of preservation. Finally supported by adequate funding, the Park Service could implement the kinds of programs that Stephen T. Mather and Horace M. Albright had first conceived in the 1910s and 1920s. Areas of previously low priority became prime candidates for development, and many national monuments flourished. As a result, the focus of the agency broadened, and after the end of the Second World War, the way in which the Park Service perceived the Antiquities Act changed. New expectations about the role of the agency and a different vision of its future made the Antiquities Act less central to federal preservation than it had been prior to 1933.

The massive influx of money that the New Deal brought changed both the way the NPS and the public perceived the obligations of the agency. The New Deal brought many of the plans of the Park Service to fruition, and by the 1940s, federal preservation had a physical plant to support its constituency. After the New Deal, American travelers expected amenities in their national park system. Despite the preservationist bent of Director Newton B. Drury, who headed the agency between 1940 and 1952, the Park Service did its best to accommodate an increasingly large and vocal public.

After the Second World War, the areas selected for inclusion in the park system also changed. New parks and monuments were no longer fresh discoveries, as were Navajo or Devils Postpile National Monument, hastened to establishment ahead of bulldozers and developers. Instead, additions were selected by a process not unlike that conceived by the agency during the 1920s when it sought parklands in the East. The rapid action that characterized the founding of many early national monuments disappeared among seemingly endless evaluation of similar areas in search of the right parks for the system.

As a result, the Park Service ceased to use the monument category as its place of experimentation. The agency tested its new concepts in a more sophisticated fashion that rarely included the kind of heady action that had been typical early in the century. Innovation was no longer at a premium. The raw expansion that the Antiquities Act facilitated disappeared into the structure of an increasingly specialized and hierarchical bureaucracy. The Park Service had become an established entity with a clearly defined role, and the testing of concepts for which the agency once used the monument category became a less important part of Park Service strategy.

These changes led to a diminished role for the Antiquities Act in federal preservation. The agency relied heavily upon the Act prior to 1933, but after the Second World War, its role nearly disappeared. The array of titles that became available for park areas contributed to the lack of distinction that surrounded the monuments, but the primary obstacle was that, despite its vast powers, the Antiquities Act did not grant the power to fund the development of an area. With the emphasis placed upon development throughout the 1950s and 1960s, the Antiquities Act became a smaller part of the process of creating a new park area. Establishment was only the beginning of the battle, and the Antiquities Act ceased to fill the needs of the Park Service. A decline in the number of uses of the Act and informal restrictions upon its use led to a limiting of the roles that the Antiquities Act played. After 1945, its primary use was the same as one of its initial ones: as a last resort in extreme cases.

Since its passage in 1906, presidential use of the Antiquities Act had inspired serious opposition. Western congressmen regarded direct federal intervention in regional affairs as a violation of state sovereignty. Protests arose intermittently throughout the first forty years of the twentieth century, but from the administrations of Theodore Roosevelt to Franklin D. Roosevelt, the Department of the Interior continued to take advantage of the discretionary powers granted by the Act. It was only a matter of time until some president and Congress clashed over what could easily be perceived as uncontrolled executive power.

The controversy over the establishment of the Jackson Hole National Monument in the Yellowstone-Grand Teton National Park region in 1943 brought matters to a head. Typical of portions of the West in its scenic beauty and economic potential, the region acted as a magnet for the desires both of preservationists and the ranching industry. Park Service requests for an extension of Grand Teton National Park began almost as soon as the original park was established in 1929. John D. Rockefeller, Jr., was instrumental in the establishment of the original park, and his holding company, the Snake River Land Company, purchased and managed more than 33,000 additional acres in the area until the NPS could find a way to include the land in the park. Under Cammerer, the NPS had little success; in 1938, opponents calling themselves the Jackson Hole Committee outflanked the agency during a Senate public lands committee hearing in Jackson Hole. The Wyoming congressional delegation dropped the bill from the congressional agenda and no one reintroduced it. The NPS could not convince Congress to make laws concerning Wyoming lands if representatives of the state did not favor them. [1]

After the debacle in 1938, Rockefeller questioned whether he should continue his support of the project. Rockefeller had become uncomfortable with Cammerer, and his right-hand man Kenneth Chorley echoed Rockefeller's feelings when he remarked that he could not "recall seeing any organization decline as much as the Park Service since Mr. Albright left it." Indeed, the philanthropist had a legitimate complaint. He had been involved in the Grand Teton project since his initial visit to the region in 1927, and all he had to show for his benevolent efforts was an annual tax bill of $13,000. By the early 1940s, Rockefeller felt that the time for action had arrived. On 27 November 1942 he told Ickes that if the project did not progress, he had every intention of divesting himself of the property he owned. This was Rockefeller's way of initiating action; his son, Laurance later referred to the letter as "undoubtedly more of a bit of maneuver and pressure kind of thing than [an] indication of a change of purpose or policy." [2]

Rockefeller's veiled threat got the response he sought. Ickes and the Park Service suggested the creation of the Jackson Hole National Monument as an attempt to circumvent the kind of congressional disapproval they encountered in 1938. Even though Ickes warned Roosevelt of the likely uproar, on 15 March 1943 the president proclaimed 221,610 acres, including the tract that Rockefeller owned and more than 179,000 acres from the Grand Teton National Forest, as a national monument of historic and scientific significance. [3]

For the first time since the ad hoc creation of Mount Olympus in 1909, serious opposition appeared to uses of the immense discretionary power of the Antiquities Act. Jackson Hole was the consummate way-station monument, its creation inspired by Park Service desires to include an entire biota instead of just mountain peaks in Grand Teton National Park. Area residents, the Wyoming congressional delegation, and the Forest Service all objected to the establishment of the monument. At the height of the Second World War, executive discretion on the home front became a controversial issue.

Local and state interests immediately responded. Sen. Edward Robertson of Wyoming denounced the proclamation as a "foul, sneaking Pearl Harbor blow." [4] Other members of the legislative delegation, including Congressman Frank Barrett of the Jackson Hole district, were outraged. The Jackson Hole Courier, a traditional nemesis of the Park Service, vilified the proclamation, and newspapers across the state castigated the agency.

Opposition also took other forms. On 2 May 1943 local ranchers, headed by Hollywood actor Wallace Beery, a summer resident of the area, took on the NPS. Heavily armed and lacking the necessary permits, the men drove 550 yearlings across the monument to summer range higher in the mountains, defying the NPS to stop them. Superintendent Charles J. Smith of Grand Teton National Park refused to take the bait and ignored them, but because of Beery's presence, the incident attracted national attention for the burgeoning Jackson Hole controversy. [5]

On 18 May 1943 the state of Wyoming also got into the act, filing a civil suit in federal court against Superintendent Smith. The suit charged that the Jackson Hole proclamation was illegal because it was "not authorised by the provisions of law upon which it purports to be based." It also contended that Smith completely excluded state officials from decisions concerning the tract. The state asserted that it had an investment in the property, including highways, game animals, and birds, and contended that because Wyoming had "not given her consent to the acquisition of lands within Wyoming by the United States for monument purposes," the tract was "not a national monument or park, and there is no authority therefor," and that the Park Service had no right to receive donations of private land within the monument. Financial considerations also played an important role in the suit. State officials believed that they would lose important tax revenue, a share of the grazing fees collected in the portion of the monument that used to be a part of the Grand Teton National Forest, if the court upheld the monument proclamation. [6]

The suit also had serious implications for the future of the Antiquities Act. It charged that "the proclamation . . . has not declared any historic landmark, or any historic or prehistoric structure, or any other object of historic or scientific interest to be a national monument. . . . The said area itself, does not actually contain any historic landmark, or any historic or prehistoric structure, or any other object of historic or scientific interest." [7] After thirty-seven years of using the Antiquities Act to proclaim whatever it wanted, the Department of the Interior finally was asked to define the boundaries of the national monument category.

The question had never really been formally asked. After the furor surrounding the proclamation of Mount Olympus in 1909 had subsided, only Ralph Henry Cameron had spoken out against the Antiquities Act. He questioned the validity of the Grand Canyon National Monument in his lawsuits over mineral claims and property rights in the 1910s and 1920s. Other objections had been confined to public outcry, special interest lobbying, and congressional carping, mostly by western representatives. [8] The authority of the Antiquities Act had escaped substantive legal challenges until 1943. "A case of actual controversy exists as to the proper and correct interpretation of the Antiquities Act," the suit contended, and it further requested that the court hold the proclamation of the monument to be null and void. [9] In short, the state asked the federal judiciary to determine the limits of executive power under the Antiquities Act. The challenge attempted to define the limits of the Antiquities Act as well as to abolish the Jackson Hole National Monument. The attack contained broader implications that Deputy Attorney General John J. McIntyre, in charge of the case for the state of Wyoming, apparently did not recognize. The State of Wyoming narrowly perceived the issues, and the Park Service responded with a multifaceted interpretation.

Park Service officials held their ground and addressed the broader implications of the lawsuit. Initially, the agency answered the complaint by denying all charges of substance, including the contention that the agency prevented state officials and local residents from using the disputed area. Superintendent Smith cited his response to Beery and the other publicity-seeking "commandos." He had ignored their presence, making it difficult for the opposition to substantiate its charges. [10] The Office of the United States Attorney General offered assistance, and the agency began to develop the basis of its defense. It needed to define the historical and scientific values to which Roosevelt referred in the proclamation, and to show through precedent the many applications of the word object in the Antiquities Act.

The federal legal staff began to work on the defense. On 17 June 1943 Jackson E. Price offered suggestions for defense strategy. Price saw three available options. Citing Colorado vs. Toll, 268 U.S. 228, he suggested that the suit was an unauthorized challenge to federal authority "since [the] plaintiff seeks to control and interfere with the use and administration of federal property." In another vein, Price believed that the court would not review the "President's express determination" that the area contained significant historical landmarks or objects, nor his implied determination that the area fit the criteria of the Antiquities Act. Price also thought that numerous cases established that "a decision of a head of a Department on a question of fact, rendered in a matter within his jurisdiction, is final and conclusive, binding on the courts and not subject to review." Finally, Price debunked the idea that Jackson Hole represented a deviation from prior uses of the Antiquities Act. He cited the example of the second Zion and Grand Canyon national monuments as precedents for adjacent monuments that were later incorporated into existing national parks. [11] From the position of the Office of the Attorney General of the United States, the state of Wyoming had no real basis for its suit.

As a result, the Park Service requested a summary judgment to dismiss the case. Much to the chagrin of NPS officials, on 3 December 1943 the motion was denied. [12] The Park Service recognized the backlash against federal authority and believed that local politics influenced the decision. Agency officials worried that partisan stances would become a factor in the court case. There was no recourse. The state would have its opportunity to challenge the agency.

Immediately, Chief Historian Herbert Kahler began searching for experts to support the contention that the Jackson Hole area was historically significant. He settled on Dr. Leroy Hafen, the author of a number of books on the fur trade and the West, and chose Dr. Frederic Paxson, of the University of California, as an alternate. Park Service director Newton B. Drury, who replaced Cammerer in 1940, suggested noted scientist Olaus B. Murie as the appropriate person to testify on biological values, Dr. F. M. Fryxell for geological values, and Lawrence Merriam, the assistant director of Region II, which included the Jackson Hole region, on administrative issues. [13]

The Act offered the Park Service great leeway; its inherent ambiguity made it easy to defend in court. The Park Service only had to show that the establishment of Jackson Hole was not an unusual instance. In such an amorphous category, its size did not make it an anomaly. Although there were few nineteenth-century structures in the region, Jackson Hole had historic importance because of its significance for the fur trade. Its unique geological features and important kinds of scarce wildlife became the basis for its scientific value. From the perspective of the agency, both values made the establishment of Jackson Hole National Monument a legitimate use of the Antiquities Act. Agency witnesses sought to convince the court of the scientific and historical value of the region. Its case would be strengthened by evidence that Jackson Hole contained compound cultural and scientific value.

On 9 March 1944 the NPS settled on its expert witnesses, but confusion continued over how to make its case. The agency chose Fryxell, Hafen, and Murie, along with Merrill J. Mattes of the NPS historical staff. The search for a biologist and geologist outside the agency continued. [14] But the specialists took narrow view of their responsibilities, and someone had to develop a broadly based integrative approach.

The process of creating an historical justification produced tension within the agency. Mattes felt that the agency wavered on important historical questions. He advocated presenting Jackson Hole as an historic landmark, but contended that the NPS needed to assert conclusively that mountain men like John Colter, Jedediah Smith, and Jim Bridger traversed the Jackson Hole area. The agency was too tentative, Mattes wrote, asserting that its objective was "to win a lawsuit rather than to write an historical monograph. . . . [o]ur main job is to prove to the satisfaction of the court that Jackson Hole does have special historical significance. If I am wrong in this I am wondering what kind of a case for history we have left." [15] Mattes saw that accepting the pronouncements of historical professionals offered a tactical advantage. He wanted the agency to capitalize on it.

Presenting the comparable values of history and science became the crucial question in pretrial strategy. The agency had to decide which value offered a more credible argument for the court. Assistant Regional Director Howard Baker answered that question in a memo of 4 July 1944 to Director Drury. "It is our opinion," he wrote, "that all of the values contained in the Jackson Hole National Monument should be presented with equal importance, for the composite of all places the monument in the national [significance] category." [16] Baker argued that the most compelling way to make the case was to present Jackson Hole as an aggregation of values, equally justifiable historically or scientifically, and certainly secure together. The latitude in the Antiquities Act afforded the NPS that option.

It was sound policy: broaden the issues at stake and overwhelm the state in court. Between the twenty-first and twenty-fourth of August 1944, the case was heard in Federal District Court in Sheridan, Wyoming, and according to National Park Service accounts, the trial went exactly as the agency planned. The state tried to show that the creation of the Jackson Hole National Monument had been a political tactic to extend the boundaries of Grand Teton National Park. As a result, Attorney General McIntyre had to prove that there were no outstanding historic or scientific objects in the region. He presented a series of local and state residents and experts to support his claims. [17]

The Park Service countered by presenting its witnesses. Murie testified that Jackson Hole was unique because there were 120 different species of birds and forty species of mammals in the region. Dr. Harold E. Anthony of the American Museum of Natural History testified that the monument contained objects of interest to scientists and students of natural history, and that the region was "a unique ecological area." Mattes testified to the historical significance of the region, in Jackson Price's opinion, "adequately demonstrat[ing] the historical significance of the area." A geologist from the University of Illinois, Dr. Leland Horberg, and Dr. Rudolph Edmund of the Shell Oil Company "revealed the importance of the Jackson Hole valley as an outstanding example of a fault-trough, to be considered in connection with the fault-block comprising the Teton Range." [18] According to their testimony, the region also contained examples of three separate stages of glaciation, lending even more significance from a geological perspective.

The NPS succeeded in showing that the area had significance, and Price chose not to present evidence justifying the size of the national monument area. He thought such a tactic unnecessary. Wyoming failed to show that the size of the monument was inappropriate, and Price believed that the court record clearly showed that the Antiquities Act offered sufficient authority to establish the national monument. "Under the recognized authorities," Price wrote in his report of the trial, "the court may not substitute its judgement for that of the President in reviewing the propriety of the action." [19] Judge T. Blake Kennedy took the case under advisement at the close of the trial, and Price was confident that the judge planned to vindicate the creation of the monument.

The lawsuit challenged the nature of the proclamation as well as its constitutionality, but in the courtroom, the state emphasized the specifics of the case. The NPS counterattacked with a challenge to the right of the state of Wyoming to question the authority of the president. After this tactic, the state appeared to be on shaky ground, barring the kind of partisan judicial interpretation that the NPS officials indicated they feared when they discovered Judge Kennedy's close ties to the grazing industry and the local Republican party. [20]

Because Park Service strategists were able to construe the lawsuit as an attack on the Antiquities Act itself as well as on the monument, they built a defensible case. In the more than seventy previous instances that employed the Antiquities Act, no one had ever challenged the law itself. Even larger natural areas than Jackson Hole, including the original Grand Canyon, Mount Olympus, and Joshua Tree national monuments, were proclaimed under its auspices. The representative area monuments of the 1930s, such as Organ Pipe Cactus National Monument, established a precedent for including flora typical of an area. Proclaimed as scientific monuments, they were additional ammunition in favor of the Park Service.

Although the crucial issue appeared to be the limits of the Antiquities Act, Judge Kennedy avoided addressing it when he made his decision. Kennedy dismissed the case on the grounds that it was "a controversy between the legislative and executive branches of the Government in which . . . the Court can not interfere." [21] By circumventing the larger issue, the judge refused to rule upon the discretionary power of the president. The establishment of the monument stood, a sizable victory for the agency. The only redress for the state of Wyoming lay in legislative initiative.


America's National Monuments: The Politics of Preservation
©1989, Board of Trustees of the University of Illinois
©1994, University Press of Kansas
All rights reserved by the Board of Trustees of the University of Illinois

rothman/chap11.htm — 04-Feb-2005

Copyright © 1989 by the Board of Trustees of the University of Illinois. Material from this edition published by the University Press of Kansas by arrangement with the University of Illinois Press and may not be reproduced in any manner without the written consent of the author and the University of Illinois Press.