Trumping the National Monument Designations of Past Presidents

Posted on May 23, 2017 by Larry Ausherman

When a President of the United States sets aside important federal lands for conservation, the accompanying fanfare typically invokes the notion of forever.  But, in light of President Trump’s Executive Order 13792, maybe these national treasures should be asking our government the timeless question posed long ago by The Shirelles, Carole King, and others:  “Will you still love me tomorrow?”

On April 26, 2017, President Trump signed Executive Order 13792, which directs the Secretary of the Interior, Ryan Zinke, to review and make recommendations concerning many prior presidential designations or expansions of national monuments that were made under the Antiquities Act of 1906.  The Executive Order essentially suggests that some past monument designations may have been made without adequate public input, and may be overbroad or unduly restrictive of other uses of the designated lands.  The Executive Order concerns monument designations or expansions since 1996, where the designation or expansion covers more than 100,000 acres or where Secretary Zinke determines it was made without adequate public outreach and coordination with stakeholders. 

But the Executive Order, together with the review it requires, is probably only the first step.  The review probably foreshadows a future attempt by President Trump to at least pare back certain existing national monument designations, based on Secretary Zinke’s recommendations.  Prominent among the monuments that are in the cross hairs is President Obama’s controversial Bears Ears National Monument in Utah. 

The Secretarial review is on a fast track.  The Executive Order provides that the Secretary’s interim report is due in mid-June.  The final report is due in late August, and it should include recommendations for subsequent actions.  In the meantime, the Department of the Interior is inviting public comment.  On May 5, 2017, it issued a press release describing the scope of and deadlines for public comment.  It also listed the twenty two national monuments and five marine monuments that are subject to the ongoing review.

The Antiquities Act was enacted during the term of Theodore Roosevelt, and it empowers presidents to create national monuments with federal land to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”  The presidential power created by the Act is unique in that it allows presidents to unilaterally protect federal land by designating national monuments.  In that regard, presidential power under the Act goes beyond the often used power to issue executive orders.  Presidents from Theodore Roosevelt to Barack Obama have used the power given to them under the Act. 

Both presidential power to create national monuments under the Antiquities Act and Congressional power to change them under the Property Clause of the Constitution are well recognized, but President Trump’s signing of Executive Order 13792 leaves a looming question:  Does a president have the power either to abolish or to reduce in size a monument designated by a previous president?  The Antiquities Act is silent on that question.  According to a 1938 opinion of the United States Attorney General and the legislative history of the Federal Land Policy and Management Act of 1976, the Antiquities Act does not confer upon the president the power to abolish entirely an existing national monument designation.  No previous president has done so.  But the administration likely will not concede the issue of whether the president can abolish a monument.  Regardless of the Act, some note that the Constitution grants the president broad power to reverse actions of previous presidents.  The separate question of whether a president may merely reduce the size of a monument or change its boundaries is probably a closer call than the question of complete abolition of it.  Rather than abolish national monuments, President Trump might attempt to reduce the size of one or more of them.

The Act limits the size of lands that can be reserved for national monuments to “the smallest area compatible with proper care and management of the objects to be protected . . .”  But that limitation can be difficult to quantify, and it has generally not stopped presidents from designating very large swaths of land as national monuments.  For example, much of the public and political criticism of Bears Ears National Monument – designated by President Obama in the last month of his term – focuses on its huge size, which is about 1,350,000 acres of public land.  President Clinton’s 1996 designation of Grand Staircase Escalante National Monument covers about 1.9 million acres.  It has been subject to similar criticism, and it is also under review by Secretary Zinke.  Although it is somewhat unusual for a president to reduce the size of an existing monument, Presidents Wilson, Truman, and Eisenhower have done so.  However, these past reductions were not challenged, and so case law on the questions presented by the Executive Order is scarce.  Unlike these past actions to reduce monument size, any move by President Trump to change established monuments likely will be challenged.  The issues raised by his Executive Order are already highly contentious.

It remains to be seen whether any future effort by President Trump to abolish or reduce a monument’s size will withstand the inevitable legal challenge, but we can predict a few of the issues that could be raised.  Of course, the prominent initial question is whether either the Antiquities Act or the Constitution’s general grant of executive authority authorizes a president to change monument designations of past presidents. 

If the answer to that question is “yes,” many unresolved questions may arise about the scope of presidential authority to change designations.  Can a president abolish a monument altogether?  If a president can only alter, but not abolish, a monument, then by what criteria should the validity of the alteration be measured?  Is the challenged reduction in size so substantial as to thwart the conservation purposes for which the monument was created?  In the words of the Act, does the reduction leave the “smallest area compatible with proper care and management of the objects to be protected”?  Is a paltry level of public outreach or coordination preceding a president’s designation of a monument adequate legal justification for changing the monument?  Is outreach or coordination even legally relevant to a monument’s validity, and if it is, how should the adequacy of public outreach and coordination with stakeholders be tested?

Politics and public opinion will also steer the upcoming debate.  The national monument issue raised by the Executive Order is a lightning rod for many, including environmental groups, Tribes, State and local governments, and those who favor limiting the reach of the federal government.  This episode would not be the first time that President Trump has announced controversial policy that invites high profile legal challenges and the media attention that accompanies them.

I tend to be wary of landscape scale reservations of federal lands under the Antiquities Act and some other laws.  They can be as political as they are large.  Abuse of power is a concern.  We always should consider whether the designation fits in size and purpose the law that is being used to authorize it.  Is the designation simply a misguided, feel-good lob at a legacy, orchestrated by an outgoing president in his final days?  Or is it something more substantial, with a size and purpose that are supportable under the authorizing legislation?  Those are good questions for the president making the designation, for a reviewing court, and for Congress, in the rare case where it considers whether to change a designation.  But, when it comes to existing national monuments, I at least question whether President Trump (and then each of his successors) should be the one who gets to decide.

Until now, national monuments have, for the most part, enjoyed an air of permanence.  With some exceptions, presidents have typically deferred to the monument designations of predecessors, even while dismantling other aspects of a previous administration’s policies.  But President Trump’s actions raise questions about whether the tradition might end.  As legal challenges unfold, it may be years before we know to what extent this president, and every future president, could toss established national monuments into the same bin of ephemera that is used to dispose of old political appointments and presidential proclamations.

Bears Ears Monument Designation Was the Right Decision at the Right Time

Posted on January 24, 2017 by Zach C. Miller

On December 28, 2016, President Obama by Proclamation under the federal Antiquities Act designated 1.35 million acres of federal lands in southeastern Utah as the Bears Ears National Monument.  That action culminated nearly a century of efforts to protect this unique, canyon-country site, which is archaeologically rich, ecologically diverse, and the ancestral homeland of a number of southwestern Indian tribes.

Immediately after this designation, the Utah governor and congressional delegation, some local officials, and various conservative pundits railed that the designation was an illegal and inappropriate “federal land grab,” was done without proper public input, will unduly impede traditional tribal and local activities, and can and should promptly be reversed and rescinded by the incoming Trump Administration.

Each of those claims has no factual or legal merit.  The most recent Bears Ears proposal was initiated several years ago by local Navajo leaders and formally endorsed by the Navajo Nation and four other tribes whose ancestors inhabited this area, as well as other local and national Indian and conservation groups.  It has been thoroughly vetted for several years and was the subject of a number of public meetings throughout 2016, including several local meetings attended by Interior Secretary Jewell.  As a result of that extensive public input, the Obama administration excluded over 600,000 acres of initially-proposed lands that contain oil and gas leases, existing and prospective uranium mining sites, limestone quarries, grazing areas, local water supply watersheds, and other objected-to areas.  The designation also expressly protects all valid existing rights, preserves access by Native Americans for traditional uses such as sacred ceremonies and gathering plants and firewood, and creates an Advisory Committee of state, local, and tribal representatives and private landowners to provide information and advice to BLM and the U.S. Forest Service in their joint administration of the monument and development of appropriate management and transportation plans.  As a result, the principal existing activities that will be restricted within the designated Monument are the ongoing illegal theft and vandalism of federal and tribal archaeological sites.

The Proclamation also uniquely creates a Bears Ears Commission consisting of an official from each of the five Native American tribes with historic ties to the area, to provide guidance and recommendations on the management of the Monument and related plans.  This is the first, and long-overdue, instance of Native American tribes being directly involved in coordinating with federal agencies to manage a monument that protects sacred sites on their ancestral homelands.

Regarding whether this action is a proper use of the Antiquities Act, it is widely acknowledged that this area contains one of the densest and most significant concentrations of archaeological and paleontological sites and specimens in North America.  It is also uncontroverted that historic sites in the area have been extensively looted and vandalized over the last century.  The FBI has conducted major enforcement actions against illegal “pot-hunters” in this area, including as recently as 1986 and 2009.  Complaints that state and local officials can better protect against such theft and vandalism ignore that most illegal pot-hunters have been local denizens and that, until fairly recently, the University of Utah museum was a major purchaser of the pilfered artifacts.  Providing federal protection to these highly-jeopardized antiquities on federal public lands is precisely what the Antiquities Act was designed and intended to do.  Far from being improper, this protective measure is long overdue.

In terms of timing and process, the Administration waited patiently until a long-pending legislative alternative proposal to protect the area failed in Congress.  That bill, introduced by Utah Congressman R. Bishop and dubbed the Public Lands Initiative (PLI), would have put 1.4 million acres into two National Conservation Areas (NCAs) and a separate wilderness area, but it provided less protection and increased state and local control over uses in the NCAs, with no direct tribal involvement.  But that bill failed to move through Congress before it adjourned.  In addition to waiting for completion of that legislative process, by reducing the monument designation from the initially proposed 1.9 to the final 1.35 million acres, the Obama Administration also largely aligned the boundaries of the final monument designation with those of the failed PLI proposal and excluded the central areas of objection.

Regarding the proposal for the incoming Trump Administration to administratively rescind this designation, there is no legal authority for the President to do so.  The Antiquities Act authorizes a President to designate an area as a national monument on federal lands when necessary to protect the appropriate sites and resources.  It does not authorize a President to rescind a designation made by some predecessor, and no President has ever done so in the 111-year history of the Act.  The Attorney General in 1938 formally opined that the Act does not provide for such rescission, and nothing has changed that would alter that conclusion.  The Congressional Research Service recently confirmed the absence of any such authority or precedent.  Republican Party members would also do well to recall that the Antiquities Act was signed in 1906 by its own conservation hero, Teddy Roosevelt, who used it to designate 18 monuments in three years, seven of which later became popular national parks, including at the Grand Canyon.  All but three presidents since that time have done the same.  As was the case with all those actions by Teddy and others, after all the immediately-following outrage and uproar, this measured Bears Ears designation will no doubt later be acknowledged as a brave, innovative, and critical action to protect this long-vandalized and currently-threatened area.

In sum, the recent designation of the Bears Ears Monument was the right decision at the right time for the right reasons, and there is no legal basis to rescind or restrict it without an act of Congress.  The incoming Administration and Congress should not heed recent partisan, emotional calls to try to undo it and should instead work with the new tribal Commission and all affected stakeholders to develop a fair and appropriate management plan for the new Monument.

Turning Guano into Gold

Posted on July 7, 2014 by Larry Ausherman

            From guano of seabirds, national treasure springs.  The treasure is the Pacific Remote Islands Marine National Monument in the south-central Pacific Ocean, and it contains some of the most pristine tropical marine environments in the world.  It is way out there and mostly under water.  The Monument was initially created by George W. Bush in 2009, days before leaving office, pursuant to his executive authority under the Antiquities Act of 1906.  But recently, on June 17, 2014, President Obama announced his proposal to expand the Monument nearly tenfold, from the existing area of almost 87,000 square miles to a new total area of 782,000 square miles.  Although the size of the Monument will not be finally determined until after this summer’s comment period, the proposal would create the largest protected area on earth and essentially double the area of the world’s oceans that is fully protected.  The Monument would be off limits to fishing, energy exploration, and various other activities.  Again, the Antiquities Act is the basis of President Obama’s action.  The announcement came at the “Our Ocean” conference, hosted by the State Department on June 16 and 17, where other marine conservation initiatives were also announced.  The guano that made it possible came at a different time and venue, which I will describe shortly. 

            Since the presidency of Theodore Roosevelt, the scope of executive power exercised by presidents under the Antiquities Act of 1906 has prompted both needed conservation and heated criticism.  For some, criticism of Obama’s proposal aligns with the “Imperial Presidency” moniker.  Indeed, the scope of Obama’s proposal is enormous.  But many other presidents have used the Act as well, and George W. Bush leads the league in number of marine monuments created by any president under the Act.  He created four.  The reach of executive powers under the Antiquities Act is told in history that ranges from the Grand Canyon to the Statue of Liberty. 

            As elegant as the tradition of the Antiquities Act is to the cause of conservation, the Pacific Remote Islands Marine National Monument was made possible in part by a less glamorous law -- the lowly Guano Islands Act of 1856.  It is guano as much as antiquities that support much of what may become the largest protected area in the world.  And, as an example of an ambitious stretch of governmental authority, the Antiquities Act has nothing on the Guano Islands Act either.  The Antiquities Act gives presidents the right to preserve American antiquities with the stroke of a pen.  But the Guano Islands Act gave American citizens the right to take possession of and claim for the United States any island in the world that was unoccupied and not under the jurisdiction of another country – so long as the island held guano deposits. 

            Enacted in a time of global exploration and exploitation, the Guano Islands Act was inspired by tales of vast island deposits of guano, a valuable source of fertilizer.  The Act gave any enterprising guano company the green light to become an American Midas, turning guano into big profits in the fertilizer business.  In the mid-1800s, most of the tiny islands around which the Pacific Remote Islands Marine National Monument is based were apparently known as “guano islands”.  There were also many other guano islands.  Under the authority of the Guano Islands Act, the remote guano islands of the present day Monument were claimed for the United States, and the islands became territories of the United States.  It is largely that “territory” status that creates the modern-day jurisdiction of the United States over the islands of the Pacific Remote Islands Monument. 

            The seven islands and atolls of the Monument are tiny.  How then could these specks in the ocean provide authority to the United States to require preservation for an underwater realm of 782,000 square miles?  It is because each of the scattered islands now comes complete with a U.S. Exclusive Economic Zone (“EEZ”) which surrounds it for 200 miles in all directions from its shore.  In 1983, in accord with the United Nations Convention on the Law of the Sea, a Presidential Proclamation by President Reagan (which was unrelated to the Antiquities Act) created this 200 mile EEZ for the United States and its territories.  The EEZ provides the United States with rights to conserve and manage resources within the 200 mile zone.  The remoteness of the islands causes pristine environments and minimizes commercial activity, two factors that work in favor of creating a reserve of this size. 

            The Pacific Remote Islands National Monument bears the fingerprints of at least five presidents, reaching across the aisle and the passage of time.  Franklin Pierce signed the Guano Islands Act of 1856 into law.  Theodore Roosevelt is responsible for the Antiquities Act of 1906.  Ronald Reagan created the 200 mile EEZ for territories of the United States.  George W. Bush created the Pacific Remote Islands Marine Monument out to 50 miles from the shores of each of the Monument’s islands.  Now, President Obama is going for the whole enchilada by expanding the Monument to the full 200 mile limit around each island. 

            The moral of the story is that the thing you cheer or fear is often not the thing that matters most in the end, and sometimes conservation comes from unheralded sources.  Executive authority under the Antiquities Act is a perennial topic in the conservation conversation, but the Guano Islands Act is a sleeper.  Its original mining purpose no longer pans out in the remote Pacific, but the Act is a federal foot in the door for a very different conservation purpose over a century and a half later.  These days, the gold in the guano islands is their marine environment.  It extends offshore for a very long way, and this time the President wants to bank it.