Monumental

President Obama signed on July 10 an order creating three new national monuments, one of them in Nevada.

Republicans and conservatives immediately denounced the action. “Now, Congress is left to fix the mess made by the White House,” said U.S. Rep. Rob Bishop, a Utah Republican.

The Nevada monument is Basin and Range, about 704,000 acres in Garden Valley and Coal Valley, which are in Nye and Lincoln counties. The beautiful, remote area contains evidence of human activities from thousands of years ago, including petroglyphs and prehistoric rock art panels. Leviathan Cave contains rim pools, stalagmites, stalactites and other features.

Obama acted under the U.S. Antiquities Act, enacted by Congress to empower presidents to create national monuments. It was first used by President Theodore Roosevelt to protect Devils Tower National Monument. Nevada has fewer national monuments than most states.

The monument immediately became an issue in Nevada’s 2016 U.S. Senate race. GOP Rep. Joe Heck, a candidate for Senate, said, “The Nevada delegation has a tradition of working together to build consensus on lands bills important to our state. … Those efforts were the result of years of work in Nevada and in Congress and resulted in laws that enjoy wide public support. Yet the president, with the stroke of a pen, has bypassed Congress yet again and ignored any input from Nevadans on this designation.”

His likely Democratic opponent, former state attorney general Catherine Cortez Masto, said, “We need to do everything we can to protect Nevada’s public lands for future generations. The Basin and Range National Monument will help protect the wildlife, fauna, and cultural resources unique to our desert so Nevada’s children and grandchildren can enjoy this beautiful landscape.”

Critics seemed to suggest that local governments should have veto power over protection of public lands within their jurisdictions, a notion that might have prevented protection of Grand Canyon—originally designated under the Antiquities Act.

“I keep searching for the resolutions from the Nye and Lincoln county commissions requesting unilateral action by two political pals to carve out the state of Rhode Island from Nevada, but to no avail,” said U.S. Rep. Mark Amodei.

“I firmly believe our local ranchers and community stakeholders are the best experts in ensuring Nevada’s lands are preserved, protected and accessible,” said Gov. Brian Sandoval.

In February, at the request of U.S. Sen. Harry Reid, a public meeting attended by deputy interior secretary Michael Connor was held in Las Vegas for discussion of plans to protect public lands in Nevada, including Basin and Range.

U.S. Rep. Cresent Hardy, whose district contains Basin and Range, said military flights out of Nellis Air Force Base will be “drastically impaired as a result of this monument designation.”

But Obama—the commander in chief—included language in his proclamation creating the monument that allows military activities. It is found in paragraph 27.

Critics argued that Obama bypassed Congress, though that’s the way Congress itself wrote the Antiquities Act, thus empowering presidents to bypass Congress.

“With the stroke of a pen, President Obama has bypassed Congress and unilaterally restricted the use of over 700,000 acres of Nevada’s public land,” said U.S. Sen. Dean Heller.

Title 16, section 431 of the United States Code reads in part that the “President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” (emphasis added).

Amodei, Heller, Heck, and Hardy have all sponsored or cosponsored legislation to repeal authority for presidents to create national monuments but have not succeeded in enacting it.

Local officials oppose the designation in part because it would hamper development and mining. Information on how much acreage falls in each of the two counties was not immediately available. Nye County is the third largest county in the United States, much of it public land.

Nye County Commissioner Lorinda Wichman told the Las Vegas Review-Journal, “Nye County is larger than Switzerland, and within Nye’s 18,000-plus square miles, we are able to generate ad valorum taxes on less than 3 percent of the land mass. Each time there is more land withdrawn from Nye County for special designations, the residents of Nye County lose potential opportunities to fund future services.”

Complicating the Basin and Range issue is a mile-long architectural sculpture adjacent to the national monument. Titled “City” and created by Michael Heizer, it was built on private land at private expense at a cost of well over $20 million since Richard Nixon was president. Though the work is private and secret, the monument designation was nevertheless designed to service it. Obama’s proclamation protects access to “City,” though it is closed to the public, and Sen. Reid has made clear that he championed the monument designation in part because he was bewitched by Heizer’s work. In May, Heizer supporters Michael Govan and Brian O’Donnell wrote a Los Angeles Times essay arguing for monument status to protect “City.”

It appears likely that the intention is to eventually incorporate “City” into the national monument—or to use monument status to protect it. That would be a sharp departure from public lands protection policies in recent decades, which focused on protecting the terrain in as close to its pristine condition as possible.

“But it is inseparable from what surrounds it—government property that is mostly controlled by the federal Bureau of Land Management,” wrote Govan and O’Donnell. “All of it, including Heizer’s artwork, is fragile, endangered and worthy of protection. … It relies on—it cannot be separated from—the basin and range landscape in which and from which it has been created. With the proposed national monument, we have a rare and historic opportunity to protect an important expanse of public lands, a beautiful and pristine environment, and a world-class artwork for future generations.”

Mary Forgione reported this week in the Los Angeles Times, “The L.A. museum plans to donate the land to the federal government when the sculpture is completed, within five years.” In other words, advocates of Heizer’s work are using a handy federal legal mechanism, the Antiquities Act, for a purpose it was never intended to serve—protection of the modern works of people.

Since Mt. Rushmore, art that trammels the land has had little role on public lands. But Rushmore was created when the prevailing value in Interior was conservation—protection of natural resources for the use of humans, such as irrigation, parks and so on. To conservationists, for instance, water that was allowed to flow to the sea was wasted—thus the construction of hundreds of dams.

That value has since been eclipsed by environmentalism—protection of natural resources for its own sake. Wilderness areas are left pristine. National monuments are not used to protect contemporary works of people. Art created on public lands is expected to be temporary—as in the case of Christo curtains of moviemakers—and to leave the terrain undamaged.

Moreover, if Heizer’s work is incorporated into a national monument, what is to stop other artists from seeking to alter the terrain of national monuments?