The environmental community has been waiting for a shoe to drop ever since April 26th, when President Trump issued Executive Order 13792. The Order directed the Secretary of the Interior to recommend the reduction or abolition of national monuments that had been established or extended since the end of President Clinton’s first term. This past Monday, the shoe landed with a resounding thud in Utah.
President Trump announced a reduction by about half of the Grand Staircase-Escalante National Monument (created by President Clinton) and by almost 90% of the Bears Ears National Monument (created by President Obama). More reductions may follow. This is a big deal in the public lands world, representing the largest monument reductions ever.
Despite strong claims from parties on both sides, this is a case of first impression and the legal outcome is far from clear.
While few in number, national monuments play a large role in public lands management, covering roughly 80 million acres on land and over 750 million in the sea. Most public lands are available for multiple uses. Monument lands are “reserved” for preservation and conservation. The legal authority for national monuments comes from the arcanely-named Antiquities Act. Passed in 1906, the Act was primarily drafted to confront the growing problem of amateur archeologists, zealous experts, and treasure hunters whose combined research/looting activities were both destroying and removing significant Native American artifacts and settlements.
The Property Clause of the Constitution gives Congress plenary authority over the public lands. In the Antiquities Act, Congress delegated some of this authority to the president. It authorizes presidential proclamation of national monuments for public lands that are “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” Importantly for the current conflict, the proclamations must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.” And that’s pretty much it—no explicit substantive or procedural constraints.
Despite the name of the Act, President Teddy Roosevelt used its authority just months after passage to protect a large landscape feature, proclaiming the Devil’s Tower National Monument. Two years later, he protected over 800,000 acres in the Grand Canyon monument. Many presidents have since proclaimed monuments. President George W. Bush was noteworthy for the size of his marine monuments. President Obama set a new practice by actively involving five tribes in the design of Bears Ears.
Monument designations have long been controversial. Locals resent the potential restrictions on grazing, mining, and other development activities. They often see this as part of a larger federal attack on their traditional livelihoods — hence the impatience with arguments that national monuments increase tourism and recreation dollars. The armed stand-off with Cliven Bundy and his supporters represents an extreme version of the Sagebrush Rebellion, but the antipathy of rural Western communities to federal land management is real.
Three lawsuits have already been filed challenging the reductions and more may well be on their way. At a minimum, the courts will need to address three key issues.
1. The meaning of the Antiquities Act. While the law is clear on how to proclaim national monuments, it is silent on how to revoke or reduce them. Therein lies the problem. Does silence mean that the president may only create and extend monuments—a one-way ratchet that only Congress can reverse? This was the view of a 1938 Attorney General’s legal opinion about revoking monuments. Other public land laws from that era included specific processes for how to reduce protected areas. Or does the silence mean it was too obvious to even mention that “what the president can do, the president can equally undo?” The historic practice cuts both ways. The large Grand Canyon and Death Valley monuments weaken the argument that the Act’s authority should be limited to small areas focused on historic artifacts. At the same time, a number of presidents have reduced the size of monuments, most notably President Wilson who reduced Mount Olympus National Monument by over 300,000 acres (almost half the total size).
2. The importance of the Federal Land Policy and Management Act of 1976 (FLPMA). This law comprehensively revised the management of public lands. FLPMA left the Antiquities Act in place and prohibited the Secretary of the Interior from modifying or revoking national monuments. The prohibition was strange because the Secretary never had the authority to create monuments, much less revoke them. As a group of law professors has argued, the legislative history makes it far more likely that this was an error left over from earlier drafts and that Congress expressed a clear intent to restrict executive branch authority from unilateral reductions in monuments.
3. Constitutional claims over separation of powers. The details of this argument will need to wait for reply briefs, but one can expect assertions that later presidents have inherent authority to redress illegal actions of their predecessors — land grab proclamations that were far larger than “the smallest area compatible” for proper protection.
Eventually the courts will determine whether a president can amend a prior Antiquities Act proclamation at all, much less under what circumstances and according to what limits. These cases could go either way and will depend on the particular judges and appellate panels. The historic practice of reducing monuments is problematic. Yes, these were never challenged in court and they occurred prior to passage of FLPMA, but they happened enough to suggest an acceptable practice that courts may be willing to continue. Equally, though, the FLPMA language and legislative history favor the one-way ratchet view of the president creating and Congress reducing.
In the end, though, these actions are as political as they are legal. President Trump has sent a strong signal to extractive industries, Western rural voters, and property rights advocates that he is on their side and willing to undo the public lands legacies of Clinton, Obama, and perhaps even George W. Bush.