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

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 2016 GOP platform called for amending the legislation to reduce the president’s 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’s no coincidence that the 21-year timespan of the monuments under review is bookended by two intensely criticized monuments in Utah—Grand Staircase-Escalante, declared by President Bill Clinton in 1996, and President Barack Obama’s designation of Bears Ears late last year. Members of Utah’s congressional delegation have been lobbying Trump to overturn Bears Ears for months. “I'm committed to rolling back the egregious abuse of the Antiquities Act,” Senator Orrin Hatch, R-UT, said in a statement this week. “I have leveraged all of my influence—from private meetings in the Oval Office in the president's first week in office to my latest trip to Bears Ears this week—to ensure that this issue is a priority on the president's agenda."

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 It instructs the Interior Department to make recommendations on whether “a monument should be rescinded, resized, or modified in order to better manage our federal lands,” Interior Secretary Ryan Zinke told reporters Tuesday.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

Conservationists are hardly reassured. “Each President since Teddy Roosevelt has used the Antiquities Act to protect extra special places,” says David Yarnold, Audubon’s president and CEO. “And until today, no president has initiated such a broad assault on the conservation legacy of those before him.”

So, what’s 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” on federal lands to be national monuments. Unlike other types of designations, such as “wilderness,” there’s no requirement for public input, Congressional approval, or a review of environmental effects of the designation under the National Environmental Policy Act; all it takes is a presidential proclamation.

National monument status generally puts new development—like oil and gas drilling, mining, or expanded cattle grazing—off 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 157 monuments. Of the 10 most popular National Parks, five—Acadia, Grand Canyon, Teton, Olympic, and Zion—were first protected as monuments.

But monuments aren’t just sweeping natural landscapes. There’s Statue of Liberty, an international symbol of freedom. Harriet Tubman Underground Railroad preserves the landscapes that Tubman used to transport nearly 70 slaves to freedom. Stonewall 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’s 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 29 monuments 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 signed a bill calling on Trump to withdraw Bears Ears’ national monument status, arguing that the designation was an abuse of federal power.

Utah’s congressional delegation in Washington thinks the area should have been protected instead through legislation—like the bill Rep. Rob Bishop failed to get through Congress in 2016. “Under the Antiquities Act, there is no ability of having any input,” he told NPR. His beef with Bears Ears is that it’s the “wrong size” and "it does not take into account the various uses that the land can do.”

And there’s the rub. Bishop, Hatch, and other critics are frustrated that the president’s 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 transfers of federal public lands over to states.)

“The executive order,” Zinke said, “puts America and the Department of the Interior back on track to manage federal lands in accordance with traditional multiple use.”

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 Northeast Canyons and Seamounts Marine National Monument, which Audubon championed, and Papahānaumokuākea Marine National Monument—the 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’ll take wasn’t laid out. He noted that he’ll speak with congressional delegations, governors, and stakeholders—an approach, he says, that “restores the trust between local communities and Washington.” He also noted that his recommendations will take into account jobs created by, or lost because of, designations. “We’ll look at what sectors were affected, plus or minus, and that will be part of the recommendation.”

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’s day. That’s in large part due to the enormous marine monuments that Bush and Obama created. And it’s worth noting that Teddy didn’t shy away from declaring big monuments: Grand Canyon, for instance, at 808,120 acres, and the 639,200-acre Mount Olympus. Zinke quoted the part of the act—which is remarkably concise—that outlines the scope of the president’s authority extended to designating “the smallest area compatible with proper care and management of the objects to be protected.” 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 Mark Squillace, 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—and it’s something that Hatch has been hankering for in Utah.

Presidents, meanwhile, have also tinkered with existing monuments. They’ve expanded several, as Obama did with Papahānaumokuākea (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 half in response to the need for timber supplies during World War I. “The conservation community was alarmed and raised all kinds of protest,” says Squillace, “but 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—the so-called nuclear option employed for Judge Neil Gorsuch’s Supreme Court nomination. The latter approach is rarely employed (hence “nuclear option”), and politicians may not feel compelled to go that far: a 2017 poll of voters in the West by Colorado College found that 80 percent of respondents supported keeping national monument designations in place.

“One of the reasons monuments are not abolished by Congress is that they become really popular,” Squillace says. He notes that local residents were so furious about the Grand Staircase-Escalante designation—which put the kibosh on a plan to mine more than 30 million tons of coal—that they hanged effigies of Clinton and Interior Secretary Bruce Babbit. Locals are still divided, but the surrounding towns have seen an increase in economic growth. “Now there’s $26 million a year in tourism revenue directly associated with the monument, and more than 400 jobs.”

When it comes to the president, things get murky. “We don’t have any case law on this question at all,” Squillace says of the president’s 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. No president 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. “The Cummings opinion remains as a kind of bulwark against contrary arguments made by other interior lawyers,” Squillace says.

Wait—no previous administration has ever attempted to completely undo an existing national monument?

Nope. If Trump tries, we’re heading into uncharted territory, and a legal fight that will very likely go to the Supreme Court. And if that’s the case, “it’s conceivable the court could go either way on it,” Squillace says. 

Even if the Trump administration takes a softer approach, say reducing the size of Bears Ears, it’s not a slam-dunk. Squillace says it would involve proving that not all of the objects, or landscapes, protected were of scientific interest—essentially 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

“Having 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,” says Squillace, “it seems to me that it’s going to make it harder to reverse that decision.”

That doesn’t mean Trump won’t 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.