Trump’s National Monument Reduction Is Illegal and Likely to Be Reversed

Here’s why legal scholars think slashing Bears Ears and Grand Staircase won’t stick.



File 20171204 23009 caue0f.jpg?ixlib=rb 1.1
Supporters of the Bears Ears and Grand Staircase-Escalante national monuments during a rally Saturday, Dec. 2, 2017 in Salt Lake City.
AP Photo/Rick Bowmer

On December 4, President Trump traveled to Utah to sign proclamations downsizing Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by nearly 50 percent. “[S]ome people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” Trump said. “And guess what? They’re wrong.”

Native American tribes and environmental organizations have already filed lawsuits challenging Trump’s action. In our analysis as environmental and natural resources law scholars, the president’s action is illegal and will likely be overturned in court.

Contests over land use

Since 1906 the Antiquities Act has given presidents the authority to set aside federal lands in order to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

History of the Antiquities Act.

When a president creates a national monument, the area is “reserved” for the protection of sites and objects there, and may also be “withdrawn,” or exempted, from laws that would allow for mining, logging or oil and gas development. Frequently, monument designations grandfather in existing uses of the land, but prohibit new activities such as mineral leases or mining claims.

Because monument designations reorient land use away from resource extraction and toward conservation, some monuments have faced opposition from local officials and members of Congress. In the past two decades, Utah has been a flashpoint for this debate.

In 1996 President Clinton designated the Grand Staircase-Escalante National Monument, a region of incredible slot canyons and remote plateaus. Twenty years later, President Obama designated Bears Ears National Monument, an area of scenic rock formations and sites sacred to Native American tribes.

Utah’s governor and congressional delegation have long argued that these monuments are larger than necessary and that presidents should defer to the state about whether to use the Antiquities Act.

Zinke’s review

In April President Trump ordered a review of national monuments designated in the past two decades. Trump directed Interior Secretary Ryan Zinke to recommend steps to eliminate or shrink these monuments or realign their management with Trump administration priorities.

Secretary Zinke’s review was an arbitrary and opaque process. During a rushed four-month period, Zinke visited only eight of the 27 monuments under review. At the end of the review, the Interior Department released to the public only a two-page summary of Zinke’s report.

Interior Secretary Ryan Zinke visiting Bears Ears National Monument, May 9, 2017.
DOI, CC BY-SA

In September the Washington Post published a leaked copy of Zinke’s detailed recommendations. They included downsizing, changing management plans or loosening restrictions at a total of 10 monuments, including three ocean monuments.

Trump’s proclamations

Trump’s proclamations on Bears Ears and Grand Staircase-Escalante note the long list of objects that the monuments were created to protect, but claim that many of these objects are “not unique,” “not of significant scientific or historic interest,” or “not under threat of damage or destruction.”

As a result, Trump’s orders split each monument into smaller units, excluding large tracts that are deemed “unnecessary.” Areas cut from the monuments, including coal-rich portions of the Kaiparowits Plateau, will be reopened to mineral leasing, mining and other uses.

In our view, Trump’s justification for these changes mischaracterizes the law and the history of national monument designations.

What the law says

The key question at issue is whether the Antiquities Act empowers presidents to alter or revoke decisions by past administrations. The Property Clause of the Constitution gives Congress the power to decide what happens on “territory or other property belonging to the United States.” When Congress passed the Antiquities Act, it delegated a portion of that authority to the president so that administrations could act quickly to protect resources or sites that are threatened.

Critics of recent national monuments argue that if a president can create a national monument, the next one can undo it. However, the Antiquities Act speaks only of designating monuments. It says nothing about abolishing or shrinking them.

Two other early land management statutes – the Pickett Act of 1910 and the Forest Service Organic Act of 1897 – authorized the president to withdraw other types of land, and specifically stated that the president could modify or revoke those actions. In contrast, the Antiquities Act is silent on reversing past decisions.

Ruins at Chaco Culture National Historic Park, New Mexico, originally protected under the Antiquities Act by President Theodore Roosevelt in 1907 to prevent looting of archaeological sites.
Steven C. Price/Wikipedia, CC BY-SA

In 1938, when President Franklin D. Roosevelt considered abolishing the Castle-Pinckney National Monument – a deteriorating fort in Charleston, South Carolina – Attorney General Homer Cummings advised that the president did not have the power to take this step. (Congress abolished the monument in 1951.)

Congress enacted a major overhaul of public lands law in 1976, the Federal Land Policy and Management Act, repealing many earlier laws. However, it did not repeal the Antiquities Act. The House Committee that drafted the 1976 law also made clear in legislative reports that it intended to prohibit the president from modifying or abolishing a national monument, stating that the law would “specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”

Since that time, no president until Trump has attempted to revoke or downsize any national monument. Trump’s changes to Bears Ears and Grand Staircase-Escalante depend on an argument that presidential declarations about what a national monument protects are subject to second-guessing by subsequent presidents. These claims run counter to every court decision that has examined the Antiquities Act.

Courts have always been deferential to presidents’ use of the law, and no court has ever struck down a monument based on its size or the types of objects it is designed to protect. Congress, rather than the President, has the authority to alter monuments, should it decide that changes are appropriate.

The value of preservation

This summer 118 other law professors, as well as California Attorney General Xavier Becerra and a number of conservation organizations, cited our analysis in letters to Secretary Zinke concluding that the president does not have authority to downsize or revoke national monuments.

Although many national monuments faced vociferous local opposition when they were declared, including Jackson Hole National Monument (now part of Grand Teton National Park), over time, Americans have come to appreciate them.

Indeed, Congress has converted many into national parks, including Acadia, the Grand Canyon, Arches and Joshua Tree. These four parks alone attracted over 13 million visitors in 2016. The aesthetic, cultural, scientific, spiritual and economic value of preserving them has long exceeded whatever short-term benefit could have been derived without legal protection.

Bears Ears and Grand Staircase-Escalante are home to many natural and archaeological wonders, including scenic bluffs, petroglyphs, burial grounds and other sacred sites and a rich diversity of plant and animal life. The five Native American tribes that supported protecting Bears Ears, led by the Navajo Nation, have vowed to defend the monuments in court. President Trump’s effort to scale back these monuments oversteps his authority and is unlikely to stand.

By Nicholas Bryner, Emmett/Frankel Fellow in Environmental Law and Policy, University of California, Los Angeles; Eric Biber, Professor of Law, University of California, Berkeley; Mark Squillace, Professor of Law, University of Colorado, and Sean B. Hecht, Professor of Policy and Practice; Co-Executive Director, Emmett Institute on Climate Change and the Environment; and Co-Director, UCLA Law Environmental Law Clinic, University of California, Los Angeles

This article was originally published on The Conversation.

 

Showing 10 comments
  • Jeff Bevan
    Reply

    Lets hope this is the case. We risk the revolving door aspect that subsequent administrations would/could impose on any monument. At least in the examination of issues leading up to approving Bear Ears there was a huge amount of interaction between local, industry, environmental and state governmental advocates. In the end the establishment of Bears Ears was proclaimed. The ability of any subsequent administration to undo this process is unacceptable.

  • Justin
    Reply

    “Monuments” and National Parks are two different things, with Monuments being a structure or object and National Parks consisting of huge swaths of land.

    The law clearly states and repeatedly refers to “objects,” as in specific structures and features. In addition, the framers went beyond the scope to make sure that these parcel of lands be “be confined to the smallest area compatible with proper care and management of the objects to be protected.”

    The Bears Ears Monument is more than 2,100 square miles. That’s more than half the size of some states. For land this large, we already have a system in place for creating National Parks.

    I’m no fan of Trump, but all he did was restore the intent of the law as original stated. If you want to make this monument and the surrounding land a National Park, fine, let’s have that conversation, but don’t pretend that using the Antiquities Act in the manner that President Obama (or Clinton) did was not an abuse of power.

    • Dusty
      Reply

      Justin – don’t you pretend that Trump’s acting for the sake of observing or restoring a law’s intent. That’s absurd; ridiculous; laughable. You’re delusional. The administration’s blatant misunderstanding of law over the past year has been almost unbelievable.

      His intentions are disgraceful. You should be concerned about the bigger picture, here – Trump’s wanton disregard for the will of the people and for economic and social progress. There will be a day, very soon, where he attempts to destroy something that you too hold dear. This is corruption and vanity and a giant lugey in your face.

      Agreed, it should be protected in a more appropriate way. But that doesn’t make it right to gut it for short-term exploitation. Are you seriously in favor of mining coal on US soil in order to ship it to China? Lining the pockets of politicians and industry executives at the expense of millions of people? Are you that ignorant to current energy trends?

      “Land this large” is fast becoming the only thing Americans have to be proud of.

    • Bob Howells
      Reply

      Justin, do you honestly think the Antiquities Act was written to protect only discrete objects? Potsherds? A few fossilized bones? It clearly refers to the need to preserve the tracts of land on which those objects reside.

      As to the intent of the law, it was specifically written for President Theodore Roosevelt, and lawmakers fully understood that he would use the act to preserve places like the Grand Canyon. Which part of the Grand Canyon would you snip away to confine it to the “smallest area compatible,” etc.?

      And who is to say that land itself is not an object of “historic or scientific interest” and thereby worthy of protection under the Act?

      How do you deign that President Obama abused power? He acted legally. Trump didn’t. Since you’re fond of citing the language of the Act, where does it say that the president can remove land from an existing national monument?

      BTW, your contrasting of national monuments and national parks is specious. Yes, they are two different things with different management policies, but the differences have absolutely nothing to do with the size of their land.

    • R.Martin
      Reply

      Without interjecting my own opinion about the merit of Trump’s action, some counterpoint legal analyses document links (not opinions) are worthwhile for readers. The article above (by “The Conversation”) one can believe presents the legal argument the fight can be won ultimately in court. In the courts, there will likely be focus on the point of the Antiquities Act’s sentence about the “smallest area” (fully cited below), as well as the White House reported precedence (18 times) for a President modifying by executive order the size of national monuments. The full sentence from the Antiquities Act: “The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” I wonder if the parties going to court against the White House are doing it for the legal fees and institutional support money they hope to get, I can’t see how a higher court if not the immediate court will not agree with the very precise wording in the law. A lot of people who donate money to fight this case I think will be disappointed in court. Before people donate, they should read at least these links: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3004821 (click on the button “download this paper” to get the 31 page document which is free without registration), http://www.weeklystandard.com/fact-check-was-trumps-reduction-of-two-national-monuments-in-utah-illegal/article/2010723 , http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title54-chapter3203&edition=prelim and https://www.whitehouse.gov/the-press-office/2017/12/04/president-donald-j-trump-stands-local-communities-against-government . If the readers do not think lawyers like to fight over cases like this for the money (and the principles, I won’t dispute that) even if they suspect they may lose in court (if this goes to the Supreme Court, what do you suppose will happen there?), then find a friend who is a lawyer and ask him or her to comment.

    • Joe
      Reply

      Justin,
      You clearly are uninformed. The terms “National Monument” and “National Park” are names of two land management classes and not something defined by the dictionary. The dictionary definition of a monument may be limited to a structure or object, but the dictionary is not the source for the definition. The land management laws that created the classification categories are what define the terms “National Monument” and “National Park”. Just like the term “National Forest” is defined in the laws that dictate land management policies and is applied to include areas without any trees, a “National Monument” does not need to include a structure or an object. The laws that created that classification category define it, not the dictionary. Additionally, “National Parks” are not just “huge swaths of land” as you state. There are many National Parks that consist of an area on the scale of a few acres or less, a single house for example. You would do better to inform yourself of the issues before you spout off with uninformed opinions presented as facts.

  • Justin
    Reply

    @Dusty, I don’t pretend to know anything this president does, as he’s clearly shown to be all over the map on multiple issues. However, I respectfully disagree with you on the law as it’s currently written. See my earlier argument. If you want 2,100 acres preserved, then turn Bears Ears into a National Park. I have no problem with this. But labeling 2,100 acres as a “monument” instead of a National Park was a mistake, especially if you want to protect other aspects that might be found in the surrounding areas.

    As for the will of the people, I’m pretty sure that the people spoke and elected him president. No? (Disclaimer: I did not vote for either candidate).

    And to answer your question regarding coal mining; yes, I am in favor of mining coal on US soil, hopefully for the purpose of US energy. How else we will power your Prius and supply electricity to US residents? If some of that goes to China, so be it, this is a global economy.

    @Bob, i do honestly think the Ant. Act was written to protect objects or structures. Read the law, it’s plain as day. And again, if you want to protect the land and the historic artifacts found within, there’s a way to do that as clearly stated; make bears ear a National park, much like the Grand Canyon (not a monument).

    I believe President Obama abused his power and made a mistake by proclaiming 2,100 acres a “monument” instead of a National Park. Did he have it within his right to do so, sure, but was it a mistake? In my humble opinion, yes. All trump did was return to the law as it’s written. You want to make it a National Park, I’m with you. Fire up Congress to act.

    BTW, your argument regarding National Parks vs. National Monuments is suspect. As you stated, “they are two different things,” however, size does play a role as quoted in Outside Magazine “In this case, size matters. Although some national parks are quite small—the smallest is Pennsylvania’s Thaddeus Kosciuszko National Memorial at 0.02 acres—the minimum size today is 1,000 hectares. By requiring nearly 2,500 acres, the NPS ensures national parks have sufficient area for recreation and natural diversity. The largest national park is the 13.2-million-acreWrangell-St. Elias National Park and Preserve in Alaska. National monuments are generally smaller, and the designation requires only one item of interest (not a variety, as parks do).”

    Lastly, where does the law say he can’t? Presidents have the authority to designate National Monuments. Congress – National Parks. Now if the next president wants to restore what was altered, that’s their priority as written in the law.

    Good chat. Have a great day/night, Gents!

    • Jb
      Reply

      The people voted for Clinton, who won the popular vote.

  • bill
    Reply

    I don’t agree with the president’s decision on this, but it is good to see there is hope for reversing his decision.

    Reading this, I wonder if he already knew all of this and figured it was up to the courts to decide and he just wanted to keep a promise to his voters (despite it being the “right” thing to do or not). Again, I don’t agree with this, but hopefully our systems for keeping this from happening work.

  • Jb
    Reply

    What does Trump care about National Monuments and preservation? They are talking development, which is a real abuse of power. He is constantly being abusive! God bless the beautiful earth. We need help.

Leave a Comment

Do NOT follow this link or you will be banned from the site!

Thanks for signing up! Our Daily Digest is on its way to your inbox.

Share This