Your Land and Mine . . .

            I want to talk about the US Antiquities Act of 1906.* This brainchild of President Theodore Roosevelt, now in effect for one hundred and eleven years, has rendered tremendous service to the American people. Roosevelt was our first president who avowedly set as a national priority protection of significant tracts of public land recognized and treasured for historical, archaeological, scientific, and scenic values. The Act authorized Roosevelt – and his successors to this day – to create by proclamation National Monuments of deserving lands, thus ensuring their protection and enjoyment for and by the people

Sixteen presidents have designated more than 120 national monuments over the 111 year history of the Act. Early on, the U.S. Supreme Court in Cameron v. United States, 252 U.S. 450 (1920), upheld the constitutionality of the Act and proclamations thereunder. However over that 111 year period, fierce controversy has accompanied creation of many, if not most, of these monuments. Indeed the origins and history of the Act reflect a persistent theme: the recurrent argument over local or private control of the lands involved for private or parochial purposes versus the larger argument for their preservation and protection for public use and enjoyment.

With the recent change of administration in Washington, present conflicts seem fair to increase rather than diminish given recent monument proclamations of President *Codified at 16 U.S.C. 431-433, and see annotations for a comprehensive list of our Monuments. Obama. Assuming the din of the tumult may blot out useful historical context, and further assuming it is useful to lay some of that context before readers and commentators, I offer some observations below which should prove helpful.

National Parks and National Monuments are managed for the purpose of protecting the unique resources and values at stake. However national parks are created by Congress with presidential approval, while national monuments are created solely by presidential proclamation. So why two different scenarios if the objectives are the same? While oversimplified, the answers usually lie in the exigencies of time and in pure politics. With small monuments, so-to-speak, there is usually no conflict and presidential proclamation is the easiest and quickest route. However when the acreage is large – tens of thousands of acres, for instance – controversy is generally present and often intense. Congressional debate can extend over months and years, while activities antithetical to protection and preservation seriously, even critically, compromise the area involved. Then exercise of presidential authority pursuant to the Antiquities Act becomes indispensable.

Arguments regarding the merits of various positions of the conflicting parties can and often do last interminably. My purpose here is not to reprise conflicts. Rather, I offer a particular focused historical perspective, useful, I believe, to observer and commentator alike.

Let’s take the Grand Canyon of the Colorado River, clearly one of our best recognized and most famous national parks. Surely there can be no quarrel with legislation assuring maximum protection to the Canyon and its dedication as one of our foremost national parks. But such has not been the case. Theodore Roosevelt started the ball rolling in 1908 when he established an 800,000 acre Grand Canyon National Monument by proclamation under the Antiquities Act. The monument was given national park status in 1915. Over the next sixty years, five national monument proclamations were necessary to protect critical portions of the canyon not included in the 1915 park boundaries. In 1975 Congress passed the Grand Canyon National Park Enlargement Act, and the Park now encompasses 1.2 million acres. And even today two large national monuments adjacent to the Park give further protection to lands justly considered integral to protection of the canyon and environs as a whole.

Grand Canyon is not an isolated instance. Such well known parks as Acadia, Arches, Bryce Canyon, Death Valley, Grand Teton, Great Sand Dunes, and Zion National Parks are among the twenty-one national monuments that have become national parks. Indeed Pinnacles National Park in California, established as a national monument via the pen of Teddy Roosevelt in 1908, experienced six subsequent monument proclamations by five different presidents, before the whole became a national park in legislation signed by President Obama in 2013.

So setting aside for the moment the endless arguments of monument merit, highest and best use of public lands, and “abuse” of presidential authority, it is clear the Antiquities Act has been a critical source for protection of some of our most treasured national lands. I urge readers to keep this in mind as arguments surrounding the 1906 Antiquities Act wax and wane; arguments which are rising again as hostile parties attack President Obama’s recent proclamations. Regardless, the historical facts are clear: Many of our most treasured public lands are now protected because the Antiquities Act exists.


A place – a Table – A Candle

We had been hiking since early morning, returned to our room, and were ready for a good meal – a satisfactory repast to close a memorable day. Time for our favorite restaurant in Santa Fe – up Canyon Road amid the wonderful galleries and shops. The evening demanded it. Sure I still enjoy campsites, dinner from an open fire, the conversations as the day draws to a close; always will. But occasionally one has to spread oneself: dine on fine food with fine wine, served by skilled waiters; white table cloths, full place settings, soft music, candles to enhance the mood. The Compound.

Shown to an elegant table well placed against an adobe wall, we order wine, look over the menu, catch our breath, and talk about the day, about Kasha-Katuwe–Tent Rocks National Monument down next to Cochiti Pueblo Reservation. Kasha–Katuwe: “white rocks” in the Pueblo language Keresan. We talk about the art we’ve seen along Canyon Road, museums we’ve visited, and about venues enjoyed on this Fall trip to the magic of Santa Fe.

After a while I look more closely at the table across from us: table for two awaiting its first guests of the evening, white table cloth, candle in the middle, glass door giving out on to an intimate southwestern patio, surrounded by adobe walls and warmed by subdued lighting. A stunning setting, enhanced by the fading light of a setting sun. The candle seems to burn brighter as evening comes on.

On this particular table there is a second candle a little bigger than its companion, off center but strategically placed to heighten reflections from the glass door behind. A contemplative moment. Who will come in and take their places at the table? Where will they have been, what will be on their minds: the galleries, Santa Fe in the early Fall, perchance Kasha-Katuwe? This lone off-center candle increasingly draws my attention as its glow strengthens, gently dominating now the scene. Surely someone will answer its beckoning candescence.

There is a companionship in that candle; it is more than a simple wax form. It is luminescent, it is clean, it is warm and welcoming, it waits expectantly to shine on good company and good food and wine. It is all of that to each of us drawn to its light, in commonality with each other. Setting, décor, design, atmosphere–the whole tableau—speaks to us. And with feelings of harmony and approval we silently nod our heads. A fine moment, honored as all fine moments should be.

And as we rise to depart, the hostess is pulling out one of the chairs for a couple who has just arrived. Their moment now begins; our moment is complete.

With an assist from my friend Nancy Olmstead.


The Country is going to Hell! We know this because the doomsayers, supported – inadvertently, I’m sure, or am I . . . – by media running 24-7 who tell us so. And insist that we get the message by constantly rubbing it in.

I put together this list of woe at the breakfast table the other morning:

  • People don’t have jobs, or, they don’t have the job they want, or they are not fairly paid for the job they have;
  • Our healthcare system – particularly the ACA, otherwise known as “Obama Care” – does not work;
  • “Immigration” (this term must be in quotes today) threatens our very fabric;
  • Our education system stinks and student debt soars;
  • Our infrastructure is crumbling;
  • Our individual rights are being eroded;
  • We don’t get proper respect from the world;
  • Terrorism will eventually get us all.

Forgive me if I left out your favorite. But not to worry, someone is sure to hit it before the day is out.

Well, aside from the fact I don’t buy into half the gloom I list, I can’t deny that a good many of our fellows are really pissed. The “system” isn’t working; “gridlock” abounds. Okay, okay . . . . Of course I know I must make allowances – after all – it’s an election year! And there are serious problems which must be addressed.

I offer here a different scenario; a pursuit, “system,” a worthy system, which does work, which addresses problems and resolves them – every day. It works haltingly as expected of most endeavors involving large number of human beings, but actually, it works rather well: our legal system, in the vernacular, the law. I offer a brief roadmap:

  • Congress or your Legislature writes legislation protecting say, . . . the environment;
  • The President or the Governor signs off; the legislation becomes law;
  • Government agencies write regulations to explain legislative intentions and guide private and public behavior;
  • Despite the best efforts of those concerned, something bad happens, or appears to happen;
  • Folks affected hunt down a lawyer who reviews the situation and advises them;
  • The lawyer, finding reasonable grounds, writes up a complaint and takes it down to the courthouse, where the court reviews or handles the matter according to time tested rules and principles;
  • The judge, or the jury, make a determination regarding the merits and outcome of the case;
  • This decision, assuming it withstands any appeals, becomes enforceable on the parties;
  • Various legal and law enforcement authorities will enforce the decision.

This appears straight-forward, but we all know getting through this process can be laborious and expensive, to say the least. Specific outcomes may be unsatisfactory to many of us. But, since it does work, there must be reasons why. My next blog will examine some of these.



Law, Constitution and Voices For The Earth…

There seem to be a whole lot of people these days who are expert on the U.S. Constitution, and who know beyond question what it says and means. After all the words and there, and they are the set forth in pretty clear language. Further, many of these “experts” are quick to cite the underlying wisdom of the “Founders” – the folks who fought the Revolution and who gathered in Philadelphia in 1787 to write our Constitution – as unimpeachable authority in support of constitutional interpretation. The “clear meaning,” they say, of this most basic document defining the nature of our government and the right of individual citizens should be obvious to any who read it. It follows that the constitutional language – equally clearly, according to the declarer – supports the views of the declarer.

Of course this often takes quite a bit of work and not a little imagination; a lot of things get in the way: two hundred years of judicial interpretation; decades long efforts of the Supreme Court and lower courts to measure new issues and realities against constitutional language and intent; and the natural – one could say almost inevitable – tendency of human beings to disagree on many things and channel disagreement into political or legal action. Courts work continuously to resolve the large issues of the day, although some basic, fundamental issues defy easy solution. Nevertheless, despite the difficulties court render decisions, politicians do their thing, and citizens respond with acquiescence, efforts to seek further clarification, or just plain commitment to continue their fight.

So, why am I writing this? I want to return to the individuals who find easy resolution of difficult problems in the literal language of the Constitution and wisdom of he “founders” who wrote it. Narrow interpretation seems to be the mantra of most of them. The oft-cited words of Chief Justice John Marshall writing 1819 are not for them. Marshall, addressing the need for expansive interpretation of important language in the Constitution: [the provision under consideration] “is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs”.

No doubt you have discerned where I stand: with Justice Marshall. Recently I have come across interesting material from minutes and notes of the Constitutional Convention in the summer of 1787 – wisdom of the “founders” – shedding significant light on the actual drafting of the constitutional language to be approved by delegates. The Convention’s Committee of Detail was charged to put down a draft text capturing agreements of the convention up to the last days of July. The convention then adjourned to August 6th to await the Committee’s report.

The Committee of Detail had two expressed fundamental rules governing its approach and the corresponding work of its subcommittee (or joint committee), the Committee of Style:

In the draught of fundamental constitution, two things deserve attention:

  1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
  2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution necessarily differs from the law).

Good language, I submit; language supporting Justice Marshall’s 1819 interpretation of its language. Is the Constitution to be narrowly interpreted, seemingly impotent to resolving many controversies brought on by a multi-cultural, industrialized society in the Information Age, or is it to be viewed and interpreted in light of the adaptive nature and chosen form of Founders?

For seeing an adaptive Constitution and laws and interpretation operating in the area of environmental jurisprudence. I commend the observations and case histories set forth in my recent book, Voices for the Earth.

To order click here.

The Last GORP Ingredient – M&Ms!!!


So you have bagged everything up and you are on the trail. The important test of your efforts – a test infallible in its results, a test of excellence, or character – is soon upon you. Think of it. You started early in the morning; you’ve worked out the morning stiffness; it’s going to be a good day. It’s time for the morning break, time to sit down and savor the forest, the alpine flowers all about, the mountain crests just ahead, the crystal dance of the mountain stream.


You catch your breath, stretch your legs, and reach into your daypack. You haul out your bag of GORP. After a handful for yourself, you pass it to your buddy. This is done nonchalantly – the expected sharing of resources among the hiking community, but, you can’t help holding your breath; you wait expectantly for his comment, his reaction, and your blood pressure rises…


Now your self-esteem, and the esteem in which you are held by your hiking or climbing friends, these things are important, of course and you try to please as best you can.


But there is an even higher bar, a pinnacle if you will. After your buddy pops that handful into his mouth, what does he say, what is his reaction? It could be anything I suppose, but if he turns, nods his head, looks you in the eye and distinctly says…


Good Mix!!!


Good Mix!… Naturally you are modestly humble, despite the warm glow of success. You mumble acknowledgement. You shrug or make some other depressing gesture. But you’ve just passed one of the toughest tests out there. The season has really begun, it is going to be a good one. You know why it is off to a good start? The perfect proportions of M&Ms! This is not prewrapped ”trail mix.” A bag of peanuts or chili snacks… No, this is the real thing…


This is GORP!!!