Can the president shrink – or even eliminate – national monuments?
President Trump's latest executive order opens the door to reducing or revoking two dozen national monuments, including Bears Ears in Utah. It's far from clear, however, that the president has the legal authority to do so.
Boulder, Colo.—If Western Republicans have had one focus in their anger over federal land management in recent years, it’s been national monument designations.
The ability to withdraw large tracts of land from development with the stroke of a pen, under the authority of the 1906 Antiquities Act, is one of the broadest executive powers that a president has. And it’s been a power many presidents have wielded expansively as they consider their legacy.
Now the permanence of that legacy is being called into question.
In an unprecedented move, President Trump on Wednesday signed an executive order directing Interior Secretary Ryan Zinke to review all presidential monument designations greater than 100,000 acres within the past 21 years – at least 24 monuments established under Presidents Bill Clinton, George W. Bush, and Barack Obama – and recommend changes or modifications.
“Today, we are putting the states back in charge,” Trump said Wednesday at his signing ceremony at the Interior Department. He said that his order would “end another egregious abuse of federal power, and … give that power back to the states and to the people, where it belongs.”
The monuments Secretary Zinke will be reviewing are bookended by two controversial ones in Utah: Grand Staircase-Escalante (1.7 million acres, established in 1996 by Mr. Clinton) and Bears Ears (1.35 million acres, established late last year by Mr. Obama). And, as Trump acknowledged in his remarks, Utah lawmakers, particularly incensed over Bears Ears, have led the charge in asking Trump to review the designations.
But while Congress could certainly take action based on Zinke's recommendations, it’s far from clear that a president actually has the power to rescind a national monument designation of a previous president, or even to reduce its size.
Legal precedent – or lack thereof
While there is no judicial decision on the issue, several opinions by attorneys general and solicitors “strongly suggest the president doesn’t have this authority to rescind” a national monument designation, says Robert Keiter, a law professor at the University of Utah and director of the Wallace Stegner Center for Land, Resources, and the Environment. “Most legal scholars that have looked at it have concluded the same.”
Some presidents have reduced the size of monuments: President Wilson cut the Mount Olympus National Monument (now a national park) by nearly half; President Eisenhower reduced the Great Sand Dunes (also now a national park) by 25 percent; and President Taft reduced the Navajo National Monument, which he himself had established just three years earlier, by nearly 90 percent.
But, legal scholars note, none of those reductions were ever challenged in court, so there is no legal opinion on whether presidents actually had the power to make them. And all of them occurred prior to the Federal Land Policy and Management Act of 1976, which some experts believe more explicitly limits presidential powers to revoke or change monuments. Moreover, many of those earlier readjustments were based on new information. Taft, for instance, reduced the Navajo monument once better mapping showed exactly where the threats to cliff dwellings and other Native American antiquities existed, says Professor Keiter.
Some conservative theorists disagree, and the American Enterprise Institute last month published a paper by John Yoo and Todd Gaziano outlining legal arguments for presidential authorities to rescind or reduce monuments.
“We are confident that, pursuant to this power to designate, a president has the corresponding power to revoke prior national monument designations, although there is no controlling judicial authority on this question,” the authors wrote, adding that they were even more confident that he can reduce the size of a monument.
157 monuments since 1906
Since Congress passed the Antiquities Act in 1906, under President Theodore Roosevelt, it’s been used by 16 presidents to establish 157 monuments. Many of those monuments went on to become national parks – and nearly half of America's current national parks were first designated monuments, including iconic parks like the Grand Canyon, Grand Teton, Arches, and Zion.
From the beginning, many of those designations have been controversial, and some have been challenged, unsuccessfully, in court (controversies over monuments in Wyoming and Alaska did lead to the only two modifications to the Antiquities Act, exempting Wyoming from further presidential monument designations and requiring Congressional approval for any monument in Alaska greater than 5,000 acres).
In a press briefing Tuesday night, Zinke emphasized that this order “does not strip any monument of a designation” or “loosen any environmental or conservation regulation on any land or marine areas,” and he promised to go into the review with an open mind.
“I just want to make a firm judgment based on the facts on the ground and giving people a voice,” said Zinke. He said that he will make a recommendation on Bears Ears – by far the biggest flash point in the current debate – within 45 days and will have a final recommendation on all the monuments within 120 days.
In explaining the need for the review, Zinke cited the limits put in place in many monuments on industries such as mining, oil and gas exploration, and timber harvest, and noted that “in some cases, the designation of the monuments may have resulted in loss of jobs, reduced wages and reduced public access.”
But many conservation advocates note that, however controversial they were at the time, most monuments become a significant economic boost for local communities, and often become highly popular.
Utah's 'mighty five'
Four of Utah’s “mighty five” national parks, now the bedrock of its strong tourism industry, started as monuments, and even the controversial Grand Staircase-Escalante monument has had a positive impact on the local economy.
“It’s important to look at national monuments over the arc of history,” says Kate Kelly, public lands director at the Center for American Progress, a liberal think tank. “Often when places were established there was controversy about locking up resources. In each case they’ve stood the test of time.”
When Headwaters Economics, an independent nonprofit that works to improve community-development and land-management decisions in the West, twice analyzed the economies of communities adjacent to significant national monuments, they found that the economies surrounding all 17 monuments they studied expanded following the monuments’ creation.
“Nearby national monuments help communities to diversify economically while increasing quality of life and recreational opportunities that assist communities to become more attractive for new residents, businesses, and investment,” said Chris Mehl, policy director for Headwaters Economics, in a statement Wednesday.
And for all its controversy, Keiter notes that Bears Ears is the first monument to be explicitly proposed by Native Americans – it was proposed by a coalition of five tribes, and would also be the first monument jointly managed by the tribes and the federal government – in order to protect important tribal lands and artifacts. Protecting that heritage was the primary reason the Antiquities Act was originally created.
Rob Bishop, a Republican congressman from Utah, the House National Resource Chairman, and one of the biggest critics of both Bears Ears and the reach of the Antiquities Act, has already promised to push legislation overhauling the act.
He and other critics contend that the size of monument designations has grown, and now goes far past what the original law intended: to reserve “the smallest area compatible with the proper care and management of the objects to be protected.”
But while the last two presidents designated huge amounts of acreage, most of that acreage was in marine areas. And plenty of early monuments, including the Grand Canyon, Glacier Bay, and Death Valley, were also large.
As Bishop and other conservative lawmakers cheered Trump’s executive order Wednesday as the first step in rolling back monument designations, others promised a strong pushback, not just from environmental groups, but from a public that tends to see public lands very favorably.
“If Zinke comes back from this review with recommendations that are anything but ‘keep the monuments as they are,’ this is going to face legal challenges and huge resistance from the American public,” says Ms. Kelly of the Center for American Progress. “The Antiquities Act has been used by presidents over the past 100-plus years to protect some of our nation’s most stunning places… This executive order is an attempt to undermine one of the nation’s most important conservation tools. We think this is an attack on national parks and public lands writ large.”