A hearing Wednesday will focus on legislation to weaken the Antiquities Act/BLM photo from Bears Ears National Monument in Utah

Editor's note: This updates with opposition to the legislation from the National Parks Conservation Association.

A hearing Wednesday before the U.S. House Natural Resources Committee will focus on proposed legislation to weaken the Antiquities Act that presidents from both parties have used to establish national monuments.

The bill, sponsored by Rep. Mariannette Miller-Meeks, a Republican from Iowa, would require presidents to consult with Congress before designating monuments.

When she introduced the legislation in September, Miller-Meeks said that, "[F]or years the Obama and Biden administrations used the Antiquities Act to institutionalize massive executive overreach, seizing acres and acres of land without consequence. In some congressional districts, almost 80 percent of rural land is set aside as public or federal land. The Congressional Oversight of the Antiquities Act would curb executive overreach and require the administration to consult Congress before making rash decisions about our federal lands.”

Congress passed the act, and President Theodore Roosevelt signed it into law, in 1906. It was seen as necessary to protect cultural resources in the Southwest from "pot hunters" and others seeking to enrich themselves through the sale of "antiquities" from long ago cultures. But through the decades, the act also has been used to protect areas not entirely viewed as scientific or historic: Fort Monroe National Monument or Belmont-Paul Women's Equality National Monument, for example.

Presidential use of the Antiquities Act in recent years has spurred a number of lawsuits, from both sides of the political aisle. After President Obama established Bears Ears National Monument in Utah, President Donald Trump issued an executive order reducing both it and Grand Staircase-Escalante National Monument by roughly 2 million acres, combined. President Trump's stated concern was that his most recent predecessors had overstepped their authority under the act by not limiting their designations to "to the smallest area compatible with proper care and management of the objects to be protected." That move prompted lawsuits from conservationists and later led President Biden to reverse his predecessor's order.

Utah officials went to court in a bid to reverse Biden's action, but a federal judge last summer ruled that the state had no legal standing to challenge Biden's decision.

Rep. Dan Newhouse, (R-Washington) who cosponsored Miller-Meek's bill, last September said, “[T[he Biden Administration has abused the Antiquities Act to lock up land across the West from development without the consent of Congress, most recently in Arizona with a new Grand Canyon National Monument. I’m proud to join Congresswoman Miller-Meeks, a Vice-Chair of the Western Caucus, on her legislation to require Congressional approval of National Monument designations to end the Executive Branch’s overreach and ensure greater access to public lands.”

According to the Congressional Research Service, "President Franklin D. Roosevelt used the authority in the Antiquities Act the most often [36 times], and President Obama proclaimed the most monument acreage [553.6 million acres]." The Service, in a 31-page analysis of the Antiquities Act [attached below], also noted in that document the debate over a president's unilateral authority to establish national monuments.

Critics of the Antiquities Act maintain that the act is inconsistent with [Federal Land Management Policy Act's] intent of restoring control of public land withdrawals to Congress. They assert that Congress is the appropriate body to make and implement land withdrawal policy and that Congress intended to review and retain veto control over all executive withdrawals exceeding 5,000 acres. On the other hand, in enacting FLPMA, the 94th Congress did not explicitly repeal or amend the Antiquities Act, despite extensive consideration of executive withdrawal authorities. Supporters of the Antiquities Act assert that Congress intended to retain presidential withdrawal authority under the Antiquities Act. Similarly, critics note that monuments have been proclaimed without the environmental studies required of agencies for “major federal actions” under the National Environmental Policy Act (NEPA), or the review of a public purpose and opportunity for public participation that FLPMA provides. However, neither NEPA nor FLPMA applies to the actions of a President (as opposed to an action of an agency), and the Antiquities Act is silent as to the procedures a President must follow to proclaim a new monument. Some want to add procedures for environmental review and public participation to the monument designation process so that significant withdrawals (with resulting effects on existing uses) would not be made without scientific evaluation, economic information, and public input. 

Some opponents to Miller-Meek's legislation point out that, "[T]he co-sponsors of this bill have collectively taken more than $3 million from the oil and gas industry and hold extreme and undemocratic positions..." (Chris Marshall, Research Manager for Energy and Environment, Accountable.US)

The National Parks Conservation Association sent a letter to the committee opposing the legislation, noting that, "[T]he Antiquities Act is one of our nation’s most important conservation laws; it allows the president of the United States to proclaim lands or waters under federal jurisdiction as national monuments to maintain the integrity of natural and cultural resources."

"Used to safeguard and preserve federal lands and historical sites for all Americans to enjoy, 18 presidents representing both political parties, have used this authority to designate 163 national monuments," the park advocacy group added. "This accounts for about one-quarter of the current sites within the National Park System. Congress has the power to designate a national park or historic site. Congress can also re-designate a presidentially proclaimed monument to become a national park, as it has done with parks like the Grand Canyon and Acadia."

NPCA staff also pointed out that, "H.R. 5499 further undermines the intent of the Antiquities Act by mandating that any sites that do not get Congressional approval as monuments may not be included in any future monument designation for 25 years. The very point of the Antiquities Act is allowing a branch of the federal government to move quickly to protect resources that are under direct threat."