The Supreme Court this year has launched a major review of the administrative state. In cases challenging the judicial deference to “expert” agency interpretations (Chevron deference), the unreviewable Consumer Financial Protection Bureau, and the unaccountability of administrative law judges, the justices are curtailing the ability of presidents and bureaucrats to bypass Congress and, in effect, make their own laws.
Later this month, the court may choose to continue that review into the next term, in a case that may have as big an impact as any of those this term. On March 22, the justices will “conference,” or discuss whether to hear, American Forest Resources Council v. United States, which centers on the Antiquities Act.
Enacted in 1906 under Theodore Roosevelt’s conservationist administration, the Antiquities Act is a four-paragraph law giving the president summary power to designate “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States to be national monuments … which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”
The purpose was to protect the magnificent vistas of the West and deposits of Native American artifacts. Roosevelt thus designated Wyoming’s Devil’s Tower the first monument, followed closely by the Grand Canyon.
The act was sparsely invoked for many decades. That changed during Bill Clinton’s presidency, which set a record, 19, for new sites, a record that Barack Obama shattered with 29.
President Joe Biden has designated fewer new monuments, 5, and enlarged two others, but in size, his designations have been vast: 1.5 million acres. That may be just the beginning. The Biden administration has announced, as a goal, putting 30% of the U.S. landmass and seabeds under federal control, adding an increment roughly the size of Alaska and thus more than doubling the current 13%.
In recent years, abuses of the act have become notorious in legal circles, as presidents have claimed for federal agencies unfettered control over one massive swath of the nation’s landmass after another for their own policy purposes. For example, Biden’s Antiquities Act land-grab hasn’t preserved Native American artifacts but instead blocked fossil fuel development.
In March 2021, writing about a previous case that the Supreme Court declined to take up, Chief Justice John Roberts called for a more suitable case to review the Antiquities Act. He disapprovingly noted that Obama had used the statute “as part of managing the Northeast Canyons and Seamounts Marine National Monument … [to ban] almost all commercial fishing in the area with a complete ban to follow within seven years.”
The presidential and administrative agency actions involved in the American Forest Resources Council case show how dangerous and sweeping the blank check of the Antiquities Act has become. At issue here is the iterative use of the Antiquities Act to nullify the 1937 Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act, or O&C Act.
That law, passed with full congressional knowledge of the Antiquities Act, set aside nearly 2.6 million acres of Oregon forest land as a permanent trust for local governments to fund public services. Timber was to be harvested each year in the same volume as what was projected to be grown that year. Nonetheless, using a 1906 law to nullify a 1937 one, the Biden administration has used the Antiquities Act to redesignate the O&C Act’s reservation of portions of these lands for other purposes. As a result, timber harvests have declined, county revenues have plummeted, and public services have been reduced.
What led to these arbitrary reversals has been long-standing environmentalist opposition to commercial logging, fishing, energy, and, in effect, economic activity in nearly all forms. These anti-development interests have found government officials ready to twist to that end every law that might win them a hearing. Agriculture and other major land users face similar assaults.
More broadly, the case takes up the increasingly expansive use of regulation and executive power to twist the meaning of land-use laws throughout the country.
This is a particular problem in the West, where the intermingling of federal lands and local economies is extensive and intricate. For example, cattle regions live and work under accommodating-all-parties rules similar to those of the lumber areas, as do small communities that combine, to some extent by tradition as well as law, a melding of informal understandings, customs, and shifting needs that go unnoticed until the administrative state steps in. Both as a matter of constitutional law and the smooth functioning of local communities, this case will have a tremendous impact.
Luckily, the Supreme Court has shown an increasing appetite for addressing cases involving executive overreach and judicial over-deference to agencies. When the justices meet later this month, they should find that American Forest Resources Council v. United States is an equally deserving case in that vein.
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Ilya Shapiro is the director of constitutional studies at the Manhattan Institute. He is also the author of the forthcoming Lawless: The Miseducation of America’s Elites and writes the Shapiro’s Gavel newsletter on Substack. Last fall, he filed a brief in another Antiquities Act case, Garfield County v. Biden, currently pending before the 10th Circuit.
