The Uproar Over Presidents and National Monuments

This week’s action by President Trump to chop the size of two national monuments in Utah was met with equal numbers of howls and praise.  Many have expressed concern about what this means for protection of federal lands.  According to the NYT, under the President’s action, the Bears Ear and the Grand Staircase-Escalante national monuments “would lose their strict protection and could be reopened for new minig or drilling.”

This post is not about whether the President’s action makes good policy.  My personal view is that while our federal lands are national treasures, the feds (and, yes, that includes Presidents) have overreached at times, failing to consider important state and local issues.  More importantly however, and this seems to get lost in the weeds, we must do a better job of managing the federal lands that are in our possession.  The deferred maintenance backlog in our national parks and wildlife refuges is a disgrace and Congress should focus on fixing that.  Sean Regan over at PERC has done great work on this issue.

What most Americans forget is how much land the federal government already owns – it’s a whopping 28% of the entire country.  Some states like Nevada and Utah, however, are predominantly under federal ownership, i.e., 84% and 54% of the land mass, respectively.  So one can understand the frustration and angst by residents of those states.

There’s been a lot of hyperbole on what President Trump’s action means and whether his actions were lawful and based on precedent, so let’s sort through the monumental myths and separate fact from fiction.  Under the 1906 Antiquities Act,

  • A total of 162 monuments have been created through presidential proclamation. Sixteen of 19 Presidents (8 Democrats and 8 Republicans) have exercised their authority under the Act.  President Obama established 34 monuments, followed by Bill Clinton (19 total) and Teddy Roosevelt (17 total).  Only Presidents Nixon, Reagan and George H.W. Bush never exercised their authority pursuant to the Act.
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  • The President’s authority under the Act to establish a monument is express and broad. The Act provides “one-way” authority to create and augment, not to abolish or diminish the size of a monument.  Although a few Presidents have used the Act to diminish the size of a monument, no President has ever abolished a monument.  Thus, any presidential proclamation (or delegated power to the Secretary) to abolish a monument would be unprecedented and unlawful.
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  • Congress reaffirmed the “one-way” authority in enacting the Federal Land Policy and Management Act of 1976 (FLPMA), clarifying the President has no authority under the Act to revoke or modify withdrawals. As such, any executive action apart from FLPMA, and its procedures, to adjust the size of a monument would be subject to challenge and would likely fail.
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  • Since the Act was promulgated in 1906, a total of 11 monuments established by presidential proclamation have been abolished by Congress. Congress has twice limited the Act’s scope, once in 1950, requiring congressional authorization for the establishment or expansion of monuments in Wyoming and in 1980 for the withdrawals of land in Alaska exceeding 5,000 acres.[1]

Earlier this year I was hired by a conservation group to review the scope of the President’s authority under the Antiquities Act.  I, like many of my colleagues, believed at the time the President’s power was sweeping and broad.  And felt most certainly President Trump, using well established constitutional and statutory authorities, could rightly abolish or reduce the size of monuments.  But after extensive research, concluded that the President’s authority is only “one-way” – this is, a President can only establish, not revoke or reduce a prior monument designation.  The legal argument that only Congress has that authority appears well supported in 1976 Congressional action, adopting the FLPMA.  Here, a House Report stated:

With certain exceptions, H.R. 13777 will repeal all existing law relating to executive authority to create, modify, and terminate withdrawals and reservations.  It would reserve to the Congress the authority to create, modify, and terminate withdrawals for national parks, national forests, the Wilderness System, Indian reservations, certain defense withdrawals, and withdrawals for the National Wild and Scenic Rivers, National Trails, and for other “national” recreational units, such as National Recreational Areas and Seashores.  It would also specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act and for modification and revocation of withdrawals adding lands to the National Wildlife Refuge System.  These provisions will insure that the integrity of the great national resource management systems will remain under the control of the Congress.

So, whether the President’s proclamation will survive court challenge – and it most certainly will be challenged – will be a case of first impression.  Cut through the hyperbole and strong emotions for or against the President’s action and whether this is good national policy, it is fitting and appropriate that the courts decide this uncertain legal question.

[1] CRS Report, Carol Vincent, National Monuments and the Antiquities Act, Sep. 7, 2016, available at https://fas.org/sgp/crs/misc/R41330.pdf (last visited Feb. 6, 2017).

 

 

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