Downsizing National Monuments: The Current Debate and Lessons From History.
Author | Horton, Grant |
INTRODUCTION
Since the day he was sworn into office as the forty-fifth president of the United States, President Donald Trump has ignited fierce and daily controversy. Many of the president's statements, such as his comments about undocumented immigrants and white supremacists, have alarmed people and enflamed passions across the country. Other statements made by President Trump, such as his twitter tirades about voter fraud, media bias, and the impeachment process, have threatened to undermine the public's faith in our country's democratic institutions. Yet, President Trump's actions are likely to have even more significant and lasting impacts than his rhetoric. Some of the president's most recent and controversial actions--like his declaration of a National Emergency to secure funds to build a wall on the country's southern border--have revived longstanding debates about presidential power and federal management of public lands. (1)
One of the most publicized and controversial actions President Trump has taken with respect to federal public lands since assuming office involves the reduction of national monuments. During the 2016 presidential campaign, Trump promised repeatedly to undo various actions by President Barack Obama and to open up more federal lands to oil and gas production. (2) On April 26, 2017, President Trump took the first step toward fulfilling these promises by issuing Executive Order 13792, titled "Review of Designations Under the Antiquities Act." (3) The order directed the Secretary of the Interior to conduct a review of all national monuments designated since 1996 that covered at least 100,000 acres and to provide a report to the president with recommendations for reductions to any monuments the Secretary deemed as not "made in accordance with the requirements and original objectives" of the Antiquities Act. (4) The order also empowered the Secretary of the Interior to review and make recommendations regarding any national monuments established since 1996 for which "the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders." (5) The order singled out Bears Ears--a national monument established by President Obama covering about 1.35 million acres in Utah--as one of the first national monuments to be considered for reduction. (6)
On June 10, 2017, after holding a four-day listening tour in Utah to hear from community representatives, former Secretary of the Interior Ryan Zinke submitted an interim report to the president recommending that Trump declare significant reductions to Bears Ears National Monument. (7) President Trump subsequently issued two proclamations on December 4, 2017, which downsized Bears Ears by 85 percent (8) and Grand Staircase-Escalante by about 46 percent. (9) The president justified the reductions in both proclamations by claiming that many of the protected objects at Bears Ears and Grand Staircase-Escalante are "not unique to the monument[s]" and are "not of significant scientific or historic interest." (10) Both proclamations also stated that many of the objects at Bears Ears and Grand Staircase-Escalante are "not under threat of damage or destruction such that they require a reservation of land to protect them." (11) The reductions of both national monuments went into effect on February 2, 2018. (12)
Former Secretary Zinke issued his final report on December 5, 2017, the day after President Trump announced the reductions to Bears Ears and Grand Staircase-Escalante. (13) In his report, Zinke reviewed a total of 27 national monuments designated under the Antiquities Act since 1996. (14) Zinke solicited public comment during his review, and admitted in his report that "[c]omments received were overwhelmingly in favor of maintaining existing monuments." (15) The Secretary nevertheless recommended changes to a number of national monuments "to protect traditional multiple use" and dismissed the comments of those opposing the changes as merely "demonstrat[ing] a well-orchestrated national campaign organized by multiple organizations." (16) In addition to the reductions of Bears Ears and Grand Staircase-Escalante in Utah, Zinke's report recommended that President Trump downsize Nevada's Gold Butte and Oregon's Cascade-Siskiyou National Monuments. Zinke's report further suggested amending the proclamations of six other national monuments to ensure that activities such as grazing, hunting, fishing, and timber harvesting could continue. (17)
Former Secretary Zinke's report instantly became a topic of fierce debate in public discourse. Conservative lawmakers praised the Secretary's recommendations as a first step toward ending federal overreach (18) while conservation advocates and tribal representatives protested that reducing national monuments and federal public lands protections via presidential proclamation was both unwise and unconstitutional. (19) Critics of the proposed national monument reductions have also attacked Zinke's review process, arguing that the Secretary ignored or suppressed evidence of the benefits of national monuments, such as increased tourism revenues and decreased vandalism, while tailoring his analysis to emphasize the potential value of logging, ranching, and energy development at existing national monument sites. (20) Others have argued that Zinke's public review process was a sham in its entirety, intended only to legitimize the exclusion of areas rich in oil and natural gas from existing national monuments. (21) Secretary Zinke resigned about one year after he issued his report, amid allegations of various unrelated scandals. (22)
President Trump's December 4, 2017 proclamations reducing the Bears Ears and Grand Staircase-Escalante National Monuments have been met with a similar furor. On the same day that Trump announced the proposed reductions, Native American tribes and environmental groups filed lawsuits in the U.S. District Court for the District of Columbia challenging the president's actions with respect to both national monuments as outside the scope of his constitutional authority. (23) The plaintiffs in both cases have brought a number of claims against President Trump and his administration based on alleged violations of the Antiquities Act, the Administrative Procedure Act, and the separation-of-powers doctrine. (24) A number of U.S. states have filed amicus briefs in both cases, and the merits of each case have yet to be addressed by the courts. (25) Thus, the question of whether the Antiquities Act gives a president the authority to reduce or revoke national monument designations made by previous presidents remains a timely and highly controversial issue.
To more properly analyze this issue in the future, courts and legal scholars should closely examine past presidential and congressional actions regarding the management of federal public lands. Part I of this Comment includes a brief review of how courts have historically approached challenges to national monument designations, before turning to the existing legal and scholarly debate regarding a president's authority to reduce or revoke national monument protections under the Antiquities Act, paying special attention to the role of the Property Clause in the U.S. Constitution. Part II discusses the difficulties of examining a president's authority to reduce or revoke national monuments through Justice Jackson's popular framework for assessing executive power, established in his famous concurrence from Youngstown Sheet & Tube Co. v. Sawyer. (26) This Part argues that courts should broaden their view of the issue by examining how the Property Clause has historically been applied to Congress and the president. As demonstrated below, such an analysis reveals that Congress's powers in the Property Clause context have repeatedly been interpreted broadly, whereas the president's powers in this area have been more fiercely questioned and challenged. Finally, Part III touches on how this historical evidence interacts with existing legal precedent and the ways in which it can help inform the current debate about whether President Trump has the legal authority under the Antiquities Act to reduce preexisting national monuments.
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CHALLENGES TO NATIONAL MONUMENT DESIGNATIONS AND THE CURRENT LEGAL DEBATE
The Property Clause of the U.S. Constitution states: "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." (27) In 1906, Congress delegated part of this authority to the president by passing the Antiquities Act, which granted the president unilateral authority to "declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments." (28) The Act states that the president "may reserve parcels of land" in designating national monuments, but that the "limits of the parcels shall be confined to the smallest area compatible with proper care and management of the objects to be protected." (29) Part B, below, examines the relationship between the Property Clause and the Antiquities Act in greater detail.
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National Monument Designations: A History of Presidential Discretion
The U.S. Supreme Court has only addressed a handful of cases that challenged the president's authority to declare national monuments under the Antiquities Act, but it has consistently afforded wide discretion to presidents' decisions to create and expand national monuments. In Cameron v. United States, (30) the Supreme Court considered a challenge to President Theodore Roosevelt's designation of the Grand Canyon National Monument in Arizona. Before President Roosevelt designated the monument, the defendant in Cameron established a...
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