By Robert Glicksman, Center for Progressive Reform
Donald Trump’s antagonism toward environmental and natural resource protections seems to know no bounds, legal or otherwise. Among his latest targets are our national monuments, which include some of the most beautiful and historically, scientifically, culturally, and ecologically important tracts of federally owned lands.
During the reign of destruction the president has unleashed in his first 100 days in office, his commitment to fossil fuel resource extraction and development regardless of the impact on our nation’s natural resource heritage has become clear. Trump signed a bill repealing the Interior Department’s regulations restricting mountaintop removal mining practices that impair water quality and create gaping landscape wounds. He blocked long overdue revisions to the Bureau of Land Management’s land use planning rules that afforded greater importance to the protection of ecological integrity and required the agency to consider the impacts of climate change on public lands. He revoked the Council on Environmental Quality’s guidelines requiring agencies to factor climate-related considerations into their National Environmental Policy Act evaluations. He ordered Interior Secretary Ryan Zinke to review and “and, if appropriate, . . . as soon as practicable, suspend, revise, or rescind” regulations to ensure that hydraulic fracturing on federal lands is done in an environmentally sound manner, to prevent wasteful flaring of natural gas, and to manage oil and gas production in our national parks and wildlife refuges. Most recently, he ordered Zinke to revise the schedule of offshore oil and gas lease sales so that it includes annual sales to the maximum extent permitted by law and to limit designation of national marine sanctuaries and marine national monument designations that would otherwise restrict drilling activities in ecologically vulnerable areas that provide habitat for a host of aquatic species, including marine mammals.
Last week, the president turned his scowling visage to our national monuments. Asserting that monument designations “may . . . create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth,” Trump issued an executive order directing Zinke to engage in a review of at least two dozen monuments. Within 120 days, Zinke must submit to the president “recommendations for such Presidential actions, legislative proposals, or other actions consistent with law as the Secretary may consider appropriate.”
The president’s authority to designate national monuments is provided by the Antiquities Act of 1906. The law authorizes the president, “in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments . . . .” This authority is unilateral. Although only Congress can create national parks, the president may designate national monuments without legislative participation. Once designated, these lands are managed under essentially the same rules and standards as those that apply to the national parks. Significantly, mineral development and other extractive uses of the kind favored by Trump and his allies in the fossil fuel industries are highly restricted, if not prohibited.
Within months of the act’s passage, President Theodore Roosevelt declared the first national monument, Devil’s Tower in Wyoming (which is familiar to many who have not visited it as a result of its central role in the movie Close Encounters of the Third Kind). Since that auspicious beginning, 15 subsequent presidents have designated well over 100 additional monuments totaling millions of acres. This venture has been a bipartisan one. Presidents of both parties have invoked the Antiquities Act to protect America’s special places. George W. Bush, for example, designated six monuments, several of which were substantial in size.
No president has ever attempted to revoke one of his predecessor’s designations. Presidents have instead frequently enlarged the boundaries of existing monuments. When Congress has acted, it has affirmed the wisdom of presidential designations by converting monuments into iconic national parks, including Acadia, Badlands, Bryce Canyon, Grand Canyon, Grand Teton, Olympic, and Zion National Parks.
Because no president has seen fit to attack a predecessor’s determination that a tract of federal land warranted protection as a national monument, no judicial precedents have addressed whether a president has the authority to revoke an existing monument. The text of the Antiquities Act strongly suggests a negative answer. It vests in the president the power to “declare” an area to be a national monument. It does not afford the president any power to “undeclare” an existing monument or nullify a predecessor’s determination that monument status is appropriate. Moreover, in 1938, the Attorney General advised President Franklin Roosevelt that he had no such authority, express or implied (39 Op. Att’y Gen. 185, 187 (1938)). Roosevelt accordingly never attempted a monument revocation.
President Trump’s executive order is designed to kick off a process that will culminate in either outright revocations or downsizing of monuments. The initiative was purportedly fueled by the antagonism by some western Republican members of Congress (such as Rep. Rob Bishop) to President Obama’s designation of the Bears Ears National Monument in Utah. It may also reflect lingering resentment over President Bill Clinton’s 1996 designation of the Grand Staircase Escalante National Monument, also in Utah (as described on the state’s own website inviting tourism in the state). That may be why Trump’s order directs Zinke to review “all Presidential designations or expansions of designations under the Antiquities Act made since January 1, 1996” where the designation initially or after expansion covers more than 100,000 acres. According to the White House, that mandate encompasses 24 monuments encompassing over 300 million acres of federal lands (for a list, see https://www.usatoday.com/story/news/politics/2017/04/26/24-national-monuments-threatened-trumps-executive-order/100925418/).
But the order has the potential to be even more far-reaching. It also directs Zinke to review any post-1996 designation “where the Secretary determines that the designation or expansion was made without adequate public outreach.” That provision vests in Zinke the standardless discretion to determine whether or not the processes that preceded monument designation were “adequate.” The Obama and Trump administrations have characterized the participatory opportunities afforded state and local governments and the public in the run-up to designation of Bears Ears quite differently.
Should Zinke recommend and the president decide to revoke any monuments, challenges to Trump’s legal authority are certain to follow. In light of the text of the Antiquities Act and the analysis in the 1938 Attorney General’s opinion, those challenges would be on firm footing. The Federal Land Policy and Management Act, which was adopted in 1976 in part to pare down implied unilateral presidential authority over the status of public lands, but which did not affect designation authority under the Antiquities Act, would constitute a further hurdle for the president to overcome.
If Trump decides instead to retain monument designations but reduce their scope, similar questions may arise. The president’s authority to reduce the size of an existing monument has not been tested, either, but the Antiquities Act expressly authorizes only declaration, not reduction, of monuments. Trump’s order clearly contemplates the possibility of reductions. Among other things, it directs Zinke to consider the act’s requirement that reservations of land for monument designations not exceed “the smallest area compatible with the proper care and management of the objects to be protected.” It is not clear that one president has the power to second-guess a predecessor’s judgment on this question. Notably, courts have uniformly deferred to presidential judgments on size without independently reviewing the question of what area is the smallest compatible. Indeed, one court upheld President Jimmy Carter’s reservation of seventeen national monuments totaling 56 million acres (Anaconda Copper Co. v. Andrus, 14 Env’t Rep. Cas. 1853 (D. Alaska 1980)).
Searching for as many reasons as possible to call into question the legitimacy of monument designations, Trump’s order directs Zinke to consider “whether designated lands are appropriately classified under the Act as historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest.” Courts reviewing challenges to monument designations, including the Supreme Court, have typically accorded the president wide latitude to determine what is suitably historic or scientific (see, e.g., Cappaert v. United States, 426 U.S. 128 (1976); Cameron v. United States, 252 U.S. 450 (1920)).
The order also requires the secretary to consider the effects of a designation on the use of private lands “within or beyond monument boundaries.” The Antiquities Act’s only reference to private lands authorizes federal acquisition of affected private lands. The order also mandates consideration of “the availability of Federal resources to properly manage designated areas.” This self-fulfilling prophecy amounts to transparent bootstrapping given the president’s budget proposal, which would slash funding for land management agencies.
If the order’s review process were conducted fairly and conscientiously, the likelihood that the recommendations it generates would favor the status quo is strong. One of the president’s stated goals is to alter designations that curtail economic growth. As many western communities are aware, monument designations deliver a significant boost to the recreation and tourism industries that operate near affected lands. But the process is unlikely to be even-handed. The speed with which Zinke must make preliminary (45 days) and final recommendations (120 days) suggests that the results are pre-ordained and that the justifications for the likely recommendations for revocations or downsizing will be flimsy, especially considering that the most recent monument designations were the product of extensive consultation with scientific experts, local residents, and state, local, and tribal leaders. A thorough evaluation of the two dozen targeted monuments within that timeframe is likely impossible, particularly given Zinke’s repeated calls for the president to fill vacant staff positions within the Interior Department more quickly.
The fate of some of the nation’s most special places is at stake. The president’s desire to gut the legal regime that has protected these places for over a century is obvious. It may be up to vigilant users of our federal lands, and the federal courts in which they challenge the legality of Trump’s responses to Zinke’s recommendations, to thwart this latest attack on our nation’s natural resource heritage.