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.
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