National monuments review a legal test for Antiquities Act
Many are both for and against the monument as he began a process ordered in late April by President Donald Trump to review all national monuments created using the Antiquities Act since 1996 that are larger than 100,000 acres. Wochit
Interior Secretary Ryan Zinke is scheduled to make his official recommendations to President Donald Trump by Thursday on whether to rescind or shrink more than 20 national monuments, including Utah’s Bears Ears and Grand Staircase-Escalante and a series of others across the American West.
Experts suggest it could lead to an unprecedented test of presidential powers via the Antiquities Act, a 111-year-old law signed by Theodore Roosevelt to protect public lands.
Zinke has spent parts of the past four months reviewing 27 monuments, responding to an April order from Trump, who called the creation of recent monuments under the Antiquities Act “another egregious abuse of federal power” and referred to the individual designation of Bears Ears as a “federal land grab.”
The law gives the president broad power to establish national monuments as a way to protect federal land that contains “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”
Under the law, a president can create a monument, but there is no specific language granting authority to rescind or change a designation. Although Congress has abolished monuments 11 times, no president has ever done so.
A report by the Congressional Research Service published in November found legal analyses going back to the 1930s concluding the president has no power to repeal a past designation.
An opinion by Attorney General Homer Cummings in 1938 implying then-President Franklin D. Roosevelt could not abolish a monument and language in the 1976 Federal Land Policy and Management Act reaffirming that only Congress would have “the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”
But some legal experts argue Trump could have an implied power to rescind or diminish any monument.
“It is a general principle of government that the authority to execute a discretionary power includes the authority to reverse the exercise of that power,” concludes a report published in the right-leaning American Enterprise Institute by John Yoo, a University of California-Berkeley law professor, and Todd Gaziano, a senior fellow in constitutional law for the Pacific Legal Foundation.
“A basic tenet of constitutional law is that no president can bind future presidents in the use of their constitutional authorities,” Yoo said.
Shrinking a monument or changing its boundaries could be more complicated.
The Congressional Research Service report noted that past presidents have deleted acres from outside monuments by claiming that they didn’t meet the Antiquities Act standard of protecting the “smallest area compatible with proper care and management of the objects to be protected.”
The report concluded the president also has broad authority to modify the management of monuments, although “the outer boundaries of this authority, too, appear to be untested.”
Most of the land under designation was already federally-owned, but open to various other uses like mining, logging, grazing and road building, that are now limited under monument designation.
Zinke has said there is “no doubt” the president has the authority to amend a monument, but acknowledged that the final decision could be decided in court.
“Legally, it’s untested,” Zinke said. “I would think that (if) the president would nullify a monument, it would be challenged and then the court would determine whether or not the legal framework allows it or not.”
Zinke has already issued a preliminary recommendation to shrink the Bears Ears monument, and stakeholders in Utah and neighboring Nevada are already anticipating similar recommendations for several others.
Such proposals would likely prompt an extended series of legal contests, on multiple fronts, experts say.
Many U.S. national parks started as national monuments, including four of the “Mighty Five” national parks in Utah, and there 130 monuments across the country.
While often controversial, most of the monuments under review were created after years of planning.
Zinke has toured the sites personally, but relatively briefly, and was criticized by monument supporters over the perception that he spent more time with anti-monument state and local politicians than he did with pro-monument residents and businesses.
Members of the five Native American tribes that pushed for a Bears Ears monument have vowed to sue if necessary to protect sacred lands, and a collection of conservation groups and others have made similar commitments.
In fact, the legal wrangling has started already.
Last week the Southern Utah Wilderness Alliance filed a suit against the administration over meetings Zinke held in private with county commissioners from Kane and Garfield counties, meetings that would be illegal because they were not publicly advertised as required by Utah’s Open and Public Meetings Act.
The Center for Biological Diversity, another advocacy group, has sued the Trump administration for refusing to release public records about the review, alleging the Interior Department did not respond to requests for Zinke’s communication records, schedule and other records regarding the review.
“Zinke’s review of these national monuments has been a sham from the start, so it’s no wonder they’re keeping this process out of the public view,” said Meg Townsend, a staff attorney with the CBD. “Why would he hide his emails and his schedule unless he doesn’t want the public to know who he’s talking to?”