Is That Legal? Department of the Interior Considers Resizing or Rescinding National Monuments Under the Antiquities Act

The law that authorizes the president to create national monuments is at risk. Here's a definitive guide to the act and how it鈥攁nd the lands it protects鈥攃ould be in trouble.

Since 1906 presidents of both parties have used the Antiquities Act to safeguard hundreds of millions of acres of federal lands as national monuments. Yet some Republicans have bitterly opposed certain designations in the last two decades, and the called for amending the legislation to reduce the president鈥檚 authority to create monuments. Today President Trump will sign an executive order directing the Department of the Interior to review national monument designations made by his three predecessors.

It鈥檚 no coincidence that the 21-year timespan of the monuments under review is bookended by two intensely criticized monuments in Utah鈥, declared by President Bill Clinton in 1996, and President Barack Obama鈥檚 designation of late last year. Members of Utah鈥檚 congressional delegation have been lobbying Trump to overturn Bears Ears for months. 鈥淚'm committed to rolling back the egregious abuse of the Antiquities Act,鈥 Senator Orrin Hatch, R-UT, said in a statement this week. 鈥淚 have leveraged all of my influence鈥攆rom private meetings in the Oval Office in the president's first week in office to my latest trip to Bears Ears this week鈥攖o ensure that this issue is a priority on the president's agenda."

Today鈥檚 order makes it clear that it is a priority. It instructs the Interior Department to make recommendations on whether 鈥渁 monument should be rescinded, resized, or modified in order to better manage our federal lands,鈥 Interior Secretary Ryan Zinke told reporters Tuesday. 鈥淭he executive order does not strip any monument of a designation,鈥 Zinke added. 鈥淭he executive is carefully crafted to review; it doesn鈥檛 predispose an outcome.鈥

Conservationists are hardly reassured. 鈥淓ach President since Teddy Roosevelt has used the Antiquities Act to protect extra special places,鈥 says David Yarnold, 爆料公社鈥檚 president and CEO. 鈥淎nd until today, no president has initiated such a broad assault on the conservation legacy of those before him.鈥

So, what鈥檚 the chance that the Trump administration will be successful in its attack on the Antiquities Act, and how can those national monuments be defended? A quick primer:

What is the Antiquities Act?

The Antiquities Act of 1906 authorizes the president "to declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest鈥 on federal lands to be national monuments. Unlike other types of designations, such as 鈥渨ilderness,鈥 there鈥檚 no requirement for public input, Congressional approval, or a review of environmental effects of the designation under the ; all it takes is a presidential proclamation.

National monument status generally puts new development鈥攍ike oil and gas drilling, mining, or expanded cattle grazing鈥攐ff limits, allowing only existing leases that are grandfathered in to be developed.

What has the Antiquities Act done?

The Antiquities Act was passed during the Theodore Roosevelt administration. Sixteen presidents, including Teddy, have used their authority under the act to create . Of the National Parks, five鈥擜cadia, Grand Canyon, Teton, Olympic, and Zion鈥攚ere first protected as monuments.

But monuments aren鈥檛 just sweeping natural landscapes. There鈥檚 , an international symbol of freedom. preserves the landscapes that Tubman used to transport nearly 70 slaves to freedom. is a New York City bar, where an uprising in 1969 marked a milestone in the pursuit of civil rights of lesbian, gay, bisexual, and transgender Americans.

Sounds great. So why is there a push to modify or nix monument designations?

Let鈥檚 take a look at Bears Ears. After being lobbied by a coalition of Native American tribes, environmentalists, archeologists, and outdoor industry groups, President Obama designated the 1.3-million-acre monument less than a month before he left office. (Obama designated a total of while in office.) The Bears Ears landscape is archeologically rich, with petroglyphs and pictographs dating back more than 5,000 years. It is sacred to many indigenous tribes, which depend on the area to continue traditions ranging from fishing to collecting medicinal and ceremonial plants. The array of topography and vegetation, and ever-present sources of water, support an impressive mix of wildlife and provide crucial habitat for species the threatened Mexican Spotted Owl, elk, and mule deer. As with other monuments, mineral and grazing rights that were granted before the area was made a national monument are preserved.

In February, Utah Governor Gary Herbert calling on Trump to withdraw Bears Ears鈥 national monument status, arguing that the designation was an abuse of federal power.

Utah鈥檚 congressional delegation in Washington thinks the area should have been protected instead through legislation鈥攍ike the Rep. Rob Bishop failed to get through Congress in 2016. 鈥淯nder the Antiquities Act, there is no ability of having any input,鈥 he told . His beef with Bears Ears is that it鈥檚 the 鈥渨rong size鈥 and "it does not take into account the various uses that the land can do.鈥

And there鈥檚 the rub. Bishop, Hatch, and other critics are frustrated that the president鈥檚 powers under the act put new development, such oil and gas drilling, off limits on monuments. (Some, like Bishop, also happen to be the same politicians pushing for of federal public lands over to states.)

鈥淭he executive order,鈥 Zinke said, 鈥減uts America and the Department of the Interior back on track to manage federal lands in accordance with traditional multiple use.鈥

Which monuments will be reviewed, and how?

Zinke will review around three-dozen monuments created since 1996, all of which are 100,000 acres or larger. This includes the controversial Grand Staircase-Escalante and Bears Ears, as well as , which 爆料公社 championed, and 鈥攖he largest monument, at 140,000 square miles, when George W. Bush designated it. (Obama later expanded it to 582,578 square miles.)

Zinke is charged with filing an interim report to Trump in 45 days, and the final recommendations in 120 days. The exact method he鈥檒l take wasn鈥檛 laid out. He noted that he鈥檒l speak with congressional delegations, governors, and stakeholders鈥攁n approach, he says, that 鈥渞estores the trust between local communities and Washington.鈥 He also noted that his recommendations will take into account jobs created by, or lost because of, designations. 鈥淲e鈥檒l look at what sectors were affected, plus or minus, and that will be part of the recommendation.鈥

Size was another theme. Zinke pointed out that the average acreage of the monuments designated in recent years is larger than those created back in Teddy Roosevelt鈥檚 day. That鈥檚 in large part due to the enormous marine monuments that Bush and Obama created. And it鈥檚 worth noting that Teddy didn鈥檛 shy away from declaring : Grand Canyon, for instance, at 808,120 acres, and the 639,200-acre Mount Olympus. Zinke quoted the part of the act鈥攚hich is remarkably 鈥攖hat outlines the scope of the president鈥檚 authority extended to designating 鈥渢he smallest area compatible with proper care and management of the objects to be protected.鈥 That may be a hint that the administration will look to shrink, rather than rescind, monuments.

Have any monuments been modified or abolished in the past?

Congress has overturned perhaps a dozen monuments, says , a natural resources law professor at University of Colorado Boulder. Nearly all were relatively minor monuments, a couple thousand acres, and the most recent was in 1980. And while monuments have been disputed in court, he adds, none have been overturned in that arena.

Congress, by the way, has also made one amendment to the act. When FDR designated the Jackson Hole National Monument in 1943, it created such an uproar in Wyoming that Congress refused to fund any operations or maintenance for years. When Truman took office, a compromise was reached: Congress would allot funding in exchange for an amendment that prohibits the creation of any new monuments in Wyoming. The rule still stands鈥攁nd it鈥檚 something that Hatch has been in Utah.

Presidents, meanwhile, have also with existing monuments. They鈥檝e expanded several, as Obama did with (follow the link to learn how to pronounce the name). A few have been reduced. Perhaps the most famous was Woodrow Wilson cutting the size of Mount Olympus National Monument, designated by Teddy Roosevelt, in response to the need for timber supplies during World War I. The conservation community was alarmed and raised all kinds of protest,鈥 says Squillace, 鈥渂ut nobody litigated the issue, nobody challenged it in court, so we never had the legality tested."

So, who exactly has the authority to change an existing monument?

Congress has the power to overturn a monument by passing legislation with a simple majority in both houses. That might seem easy in a Republican-controlled Congress, but Senate Democrats are likely to filibuster. Overcoming that would require 60 votes, or force Republicans to change the rules to allow a simple majority to end a filibuster鈥攖he so-called employed for Judge Neil Gorsuch鈥檚 Supreme Court nomination. The latter approach is rarely employed (hence 鈥渘uclear option鈥), and politicians may not feel compelled to go that far: a of voters in the West by Colorado College found that 80 percent of respondents supported keeping national monument designations in place.

鈥淥ne of the reasons monuments are not abolished by Congress is that they become really popular,鈥 Squillace says. He notes that local residents were so furious about the Grand Staircase-Escalante designation鈥攚hich put the kibosh on a plan to mine more than 30 million tons of coal鈥攖hat they hanged effigies of Clinton and Interior Secretary Bruce Babbit. Locals are , but the surrounding towns have seen an increase in economic growth. 鈥淣ow there鈥檚 $26 million a year in tourism revenue directly associated with the monument, and more than 400 jobs.鈥

When it comes to the president, things get murky. 鈥淲e don鈥檛 have any case law on this question at all,鈥 Squillace says of the president鈥檚 authority to revoke or modify a monument. Past leaders have deleted acres, as Wilson did with Mount Olympus, but those reductions have never been tested in court. has ever tried to revoke or abolish a national monument. FDR considered it in 1938, with the Castle-Pickney National Monument in South Carolina. But his attorney general, Homer Cummings, wrote an opinion saying that the act grants only one-way authority to proclaim, not to abolish. 鈥淭he Cummings opinion remains as a kind of bulwark against contrary arguments made by other interior lawyers,鈥 Squillace says.

Wait鈥攏o previous administration has ever attempted to completely undo an existing national monument?

Nope. If Trump tries, we鈥檙e heading into uncharted territory, and a legal fight that will very likely go to the Supreme Court. And if that鈥檚 the case, 鈥渋t鈥檚 conceivable the court could go either way on it,鈥 Squillace says. 

Even if the Trump administration takes a softer approach, say reducing the size of Bears Ears, it鈥檚 not a slam-dunk. Squillace says it would involve proving that not all of the objects, or landscapes, protected were of scientific interest鈥攅ssentially that the footprint is too big. With Bears Ears, in response to resistance from local residents and politicians, Obama reduced the original 1.9-million acre proposal to 1.35 million acres, removing, among other areas, an area with a uranium mine

鈥淗aving gone through that kind of careful vetting process to determine that they were only including lands that they thought they could defend, in terms of their historic and scientific interest,鈥 says Squillace, 鈥渋t seems to me that it鈥檚 going to make it harder to reverse that decision.鈥

That doesn鈥檛 mean Trump won鈥檛 try. Environmental and outdoor groups, tribes, and other monument supporters are bound to fight back. But with Republicans in control of the White House and Congress, one of our greatest conservation tools might face attacks unlike any seen in its 100-plus years of existence.