Antiquities Act : A Loophole to Treasure

President Theodore Roosevelt : Originator of Antiquities Act LoopholeI don't typically like loopholes -- there are loopholes in the tax code which let the wealthy pay less; there was a loophole in Arches National Park which let Dean Potter climb Delicate Arch without technically breaking the law. But there is a loophole I like. When the Antiquities Act was written in 1906, it was created with a loophole so big that President Theodore Roosevelt drove a mountain through it.

The Antiquities Act as it was originally imagined, was a law that would let the President immediately protect antiquities in the Southwest which were being looted by settlers in the region. The intent of the law can be read very clearly within the first paragraph: "Be it enacted ... that any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, ... shall, upon conviction, be fined in a sum of not more than five hundred dollars or be imprisoned for a period of not more than ninety days".

It is the second paragraph which contains the loophole: "The President ... is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest ... to be national monuments, ... the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected".

There it is in black & white, did you catch the loophole? Look at these words: "other objects of historic or scientific interest"; and these words: "smallest area [for] care and management". A non-specific term like "other objects" inside of a law to be used at the President's sole discretion opens the door for the widest interpretation of the law's original intent.

The law was designed to protect places like Casa Grande in Arizona (which had been protected under a separate act in 1892, and then given Monument status under the Antiquities Act in 1918). A historically significant structure built by an earlier civilization, it easily qualifies as an "antiquity". The smallest area deemed appropriate for its care and management was calculated to be 480 acres, which is fairly small.

With the creation of the Act in 1906, what would you imagine the first National Monument created under the Antiquities Act would be? Would it be Chaco Canyon: a major center of ancestral Puebloan culture between AD 850 and 1250? Or was it Gila Cliff Dwellings: home of the Mogollon culture who lived in the Gila Wilderness from the 1280s through the early 1300s? No and no. Instead the first Monument created under the new Act was Devils Tower in Wyoming, with an initial size of 1,152.91 acres.

Devils Tower, it can be argued, is hardly the antiquity that the law had in mind. It is not in the Southwest, it was not protected for its cultural history or artifacts (although it is culturally significant to many), and at over 1000 acres it isn't really "small". Instead, the establishment of the Tower as a Monument appears to have been politically influenced. On two different occasions in the late 1800s, an effort was made to create a Devils Tower National Park in congress. This effort was made in part to prevent the Tower from falling into private hands where its unique attraction could have been exploited for monetary gain. The land was protected as forest reserve (thereby protecting it from private claim), but the park efforts failed. But then in 1906, Frank W. Mondell, congressman from Wyoming and chair of the House Committee on Public Lands, had the ear of President Theodore Roosevelt. It is probably with the influence of Mondell that on September 24, 1906 Roosevelt established Devils Tower with Monument status.

Use of the Act in this way opened the doors for other such establishments. In the 100 years since its signing, this loophole has protected huge areas with Monument status:
Legal loopholes can be bad. But, if you love the protection afforded by National Monument status to our federal lands (a majority of which are within the National Park Service) then you too probably love the Antiquities Act loophole first exploited by Roosevelt 100 years ago.