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Archive for April, 2017

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Bears Ears from Natural Bridges National Monument

Last week, President Donald Trump signed an Executive Order requiring the Secretary of the Interior to review all presidential designations of national monuments under the Antiquities Act since 1996 where the size of the designated monument exceeds 100,000 acres or where “the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders,” and to provide a report within 120 days evaluating the extent to which any monument designations did not conform to the requirements of the Act and recommending actions the president or Congress might take to remedy these problems. This order has widely been interpreted and reported as an attempt by Trump to abolish controversial national monuments designated by his predecessors, especially Barack Obama, who designated more monuments than any other president. This certainly seems like a fair reading of Trump’s intent in signing the order, or at least of the impression he sought to make with it.

It’s not clear that he can actually do this, though. It’s noteworthy that the Executive Order itself only orders a review and report on whether there are problems with the designations and what might be done about them if so. It doesn’t directly have any substantive impact on anything. While this is a common pattern with Trump’s executive actions so far, in this case there is a very clear reason for it, which is that it’s not at all clear that a president actually has the authority to abolish a national monument or to revoke a designation made by one of his predecessors.

Much of the discussion of this order has centered on Bears Ears National Monument in southeastern Utah, which President Obama designated on December 28, 2016. Local officials in Utah were furious about this particular designation and have been trying to overturn it since it was made. Bears Ears is the only specific monument designation mentioned by name in the Executive Order, in a section that requires an interim report within 45 days on it and any other designations the Secretary sees fit to include. Bears Ears is also potentially of interest to readers of this blog as the location of numerous ancient Pueblo (and other) archaeological sites, including the Mule Canyon and Butler Wash Ruins, which are easily accessible Utah Highway 95 and developed for visitation. It surrounds Natural Bridges National Monument, which also contains many archaeological sites in addition to the geological structures for which it is named.

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Butler Wash Cliff Dwelling near Blanding, Utah

To understand why it is unclear whether the president has the authority to abolish a national monument designated under the Antiquities Act, it is necessary to go back and look at the Act itself. Passed in 1906 under president Theodore Roosevelt, who went on to use it to establish many monuments including Chaco Canyon in 1907, the Antiquities Act is noteworthy these days for being both remarkably short and remarkably ambiguous. It states:

That the President of the United States is hereby authorized, 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, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected

Presidents since Roosevelt have interpreted this authority broadly, and have used it to designate monuments of up to millions of acres to protect the “objects of historic and scientific interest” therein. (Bears Ears alone is about 1.35 million acres.) This seems inconsistent with the colloquial meaning of the term “monument,” which to many people implies something much smaller than, say, a national park, but in fact the broad interpretation goes back to the very beginning and even Roosevelt himself designated 800,000 acres as Grand Canyon National Monument (which, like many monuments, was later changed by Congress into a national park). Furthermore, the courts have generally agreed with this broad interpretation of the president’s power under the Act, including in an important Supreme Court case in 1920 regarding Grand Canyon. Thus, opponents of particular monuments, such as the Utah politicians upset about Bears Ears, have sometimes been inclined to try to get a subsequent president to revoke a monument designation.

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Tower at Mule Canyon, Utah

However, as a recent Congressional Research Service report explains, no president has ever tried to do this, and while this means there has been no test in court of a president’s authority in this area, there are other indications that it is unlikely to hold up. In 1938 President Franklin Roosevelt wanted to abolish a monument and consulted with his Attorney General to determine if this was possible. The AG determined that the text of the Act did not explicitly give the president the power to abolish a monument, and that there was no precedent for that power being given implicitly either. Roosevelt elected not to put this to the test.

It may seem odd that the president would have authority to take an action but not to revoke it, especially since Executive Orders are often described in exactly these terms (i.e., that they are weaker than Acts of Congress because a future president can unilaterally revoke them). A designation under the Antiquities Act isn’t quite a regular Executive Order, however. This is not an inherent power of the executive, but a Congressional power delegated explicitly to the president through the Act. Congress can also designate national monuments, and only it can establish national parks. The power to establish parks is an authority that Congress has not delegated to the president. The authority to abolish national monuments, including those designated by a president under the Antiquities Act, appears to be another such undelegated authority retained by Congress alone, and Congress has in fact abolished a few presidentially designated monuments by statute.

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Sun Marker at Edge of the Cedars with Bears Ears in Background

So it seems that if Trump were to unilaterally try to revoke Obama’s proclamation and abolish Bears Ears or another monument covered by this Executive Order, the move would probably (but not necessarily) be overturned by the courts. This doesn’t mean these monuments are totally safe, however. There has been precedent for a president to add or subtract land from an existing national monument, and while the addition of land appears to be legally valid under the same theory underlying the power to create new monuments, the authority to remove land is more questionable. While this is also untested by the courts, presidents who have removed land from monuments have claimed to  have authority to do so under the provision of the Antiquities Act requiring that monuments be confined to the “smallest area compatible with the proper care and management of the objects to be protected.” In theory this means Trump could reduce the size of a monument like Bears Ears to a tiny area, perhaps the immediate surroundings of the eponymous buttes, and claim to be within the law. Obama’s proclamation, however, in this case referred to “numerous objects of historic and of scientific interest” within the monument boundaries, without being very specific about what those objects are, which might make it difficult for a reduction in size to pass muster with the courts. As with so much else on this topic, however, this theory remains untested in an actual court case.

Finally, setting aside all of these questions about the president’s authority, there’s Congress. Note that Trump’s order asks the Secretary for recommendations on congressional as well as presidential action to address any problems he identifies with the monument designations. Here, there is no legal ambiguity: Congress has the authority to modify or abolish a national monument in any way it wants. With Republican majorities in both houses of Congress, and Trump in the White House, it might seem like the obvious approach for the anti-monument forces would be for Congress to pass a law abolishing Bears Ears and whichever other monuments the Secretary recommends getting rid of. In theory this would indeed be possible, but in practice the current Congress and president have had a lot of trouble passing even their highest-profile priorities, so it’s by no means a sure thing that they would be able to get a bill like this through. Public lands are quite popular with the country as a whole, if not with Utah politicians, and it’s likely that any attempt to roll back monuments would stoke extensive public opposition that would make it a hard lift for a Congress with plenty of problems already. Similarly, while Congress could effectively neuter the management of new monuments by withholding funding for them from spending bills, the current state of budget negotiations suggests that they would have trouble doing that as well.

Does all this mean Bears Ears and the other monuments are definitely safe from the machinations of Trump and his congressional allies? By no means; if they’re committed enough there are definitely things they can do to harm them, such as through budgeting decisions within the executive branch departments tasked with managing them. But like so much else in our system of government, once a monument is in place it’s no easy feat to get rid of it.

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Entrance Sign for Natural Bridges National Monument, Est. 1908

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