Antiquities Act: Legal Implications for Executive and Congressional Action

Date01 March 2018
3-2018 NEWS & ANALYSIS 48 ELR 10187
Antiquities Act: Legal
Implications for Executive
and Congressional Action
Secretary of the Interior Ryan Zinke's review of 27
national monuments has focused new attention on the
Antiquities Act of 1906. Two recent proclamations by
President Trump reducing existing Utah monuments,
and the potential for further actions by the presi-
dent and Congress, may substantia lly aect the future
shape and eect of this important law. On Decem-
ber 7, 2017, ELI held a seminar to explore presidential
and congressional authority in declaring and modify-
ing national monuments. Panelists discussed the Act's
legal history, the importance of existing national monu-
ments, the role of Congress in managing these lands, and
what might be expected from pending court challenges.
Below we present a transcript of the discussion, which has
been edited for style, clarity, and space considerations.
James McElsh (moderator) is a Senior Attorney at the
Environmental Law Institute.
Brenda Mallory was General Counsel for the Council on
Environmental Quality during the Obama Administration.
Mark Squillace is a Professor of Natural Resources Law at
the University of Colorado Law School.
Jonat han Wood is an Attor ney at the Pacific Lega l
Foundation and an Adjunct Fellow at the Property and
Environment Research Center.
James McEl sh: We have an excellent panel on a timely
topic. Our panelists include Mark Squillace, professor of
law at University of Colorado Law School and the former
director of the Natural Resources Law Center there. Mark
started his legal career at the Department of the Interior
(DOI) back in the 1970s, where I got to know him as an
ocemate. Mark is one of the leading authorities on the
Antiquities Act,1 having written an article2 on this topic
more than a decade ago on a lot of issues that we’re still
trying to gure out today.
Mark is going to lead us o with a brief background
on what the Antiquities Act is about or how it came to
be, then we will move to our other panelists, including
2. Mark Squillace, e Monumental Legacy of the Antiquities Act of 1906, 37
G. L. R. 473 (2003).
Brenda Mallory, who is a former general counsel for the
Council on Environmental Quality. Before that, she had a
long career at the U.S. Environmental Protection Agency
as the acting general counsel and at Beveridge & Diamond
prior to that. Brenda’s going to talk about what the Antiq-
uities Act and its uses look like from the point of view of
the administration, overseeing litigation, land conserva-
tion, and conservation of cultural resources, having been
involved with some of those decisions closely during the
Obama Administration.
She’ll be followed by Jonathan Wood of Pacic Legal
Foundation. Jonathan has written extensively and done a
great deal of work dealing with public lands, and is a lso
a litigator on those issues. I expect Jonathan will have a
point of view that diers from that of our other panelists
on the powers of the president and the powers of the U.S.
Congress. We’re pleased to have Jonathan with us. Mark
will then oer his point of view on some of the issues that I
hope Jonathan will tee up for us. en we’ll have an oppor-
tunity for audience questions.
To oer some background: as you no doubt know, Presi-
dent Donald Trump issued proclamations3 on December
4, 2017, downsizing two of the larger terrestrial national
monuments in southern Utah: Bears Ears and Grand Stair-
case-Escalante, designated by Presidents Barack Obama
and Bill Clinton, respectively. Under the proclamations,
Bears Ears will have two units, and Grand Staircase-
Escalante will be downsized by about 900,000-plus acres
and divided into three subunits.
Promptly after the president’s proclamations, ve of the
tribes that participated in getting Bears Ears proclaimed
as a national monument in the rst place led suit chal-
lenging the action.4 Ten organizations led suit the same
day on Grand Staircase-Escalante, both here in the federal
district court for the District of Columbia.5 Patagonia and
a number of other organizations led suit also, challenging
the president’s proclamations.6
3. Proclamation No. 9681, 82 Fed. Reg. 58081 (Dec. 8, 2017); Proclamation
No. 9682, 82 Fed. Reg. 58089 (Dec. 8, 2017).
4. Utah Dine Bikeyah et al. v. Trump et al., Case No: 17-cv-2605 (D.D.C.
5. e Wilderness Society et al. v. Donald J. Trump et al., Case No: 17-cv-
2587 (D.D.C. led Dec. 4, 2017).
6. Grand Staircase Escalante Partners et al. v. Trump et al., Case No: 17-cv-
2591 (D.D.C led Dec. 4, 2017).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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