enDnoteS: no take backS: pReSiDential authoRity anD public lanD withDRawalS
continued from page 13
appears the se changes were consistent w ith the purpose of the Act, a nd that if
future ch anges were to deviate from t he purpose for which a monu ment was
designated, t he analysis becomes sim ilar to a revocation—it would r equire an
Act of Congress. See Robe Rt RoSenbaum et al., the pReSi Dent haS no poweR
unilateRally to aboli Sh a national monument un DeR the antiQu itieS act
of 1906 (Arnold and Porte r Kaye Scholar, 2017) (stating that in small case s,
Presidents have mod ied monument bounda ries).
38 See vincent, supra note 27 (stat ing that Congress ha s converted certa in
monuments int o protective designation s, such as national parks).
39 See Mark Squi llace, The Monumenta l Legacy of the Antiquiti es Act of
1906, 37 Ga. l. Rev. 473, 550 (2003) (referencing Cong ressional power to
reverse president ial decisions establish ing national monument s).
40 Review of Designation s Under the Antiquities Act , 82 Fed. Reg. 20,429,
20,429 (May 1, 2017).
41 See id. (task ing the Secretar y to balance the origin al objectives of the
Antiquities Ac t with the protection of land marks, struct ures, and other
obje ct s).
42 See Stephan ie Regenold, Monumental or Not: Pres idential Authorit y
Under the Antiqu ities Act of 1906, The feD. law. 25, 28 (June 2018).
43 See id. at 28–29 (sum marizing the De partment of Inter ior’s process for
studying a nd considering public com ment regarding possible mod ications to
monu me nts) .
44 Id. at 29–30 (citing Secret ary Zinke’s Memorandum to t he President:
Final Report Su mmarizing Find ings of the Review of Designation s Under the
Antiquities Ac t).
45 Modifyi ng the Bears Ears Nationa l Monument, Proc. 9681 (Dec. 4, 2017),
82 Fed. Reg. 58,081, 58,085 (Dec. 8, 2017).
46 Modifying t he Grand Staircase -Escalante National Monu ment, Proc.
9682 (Dec. 4, 2017), 82 Fed. Reg. 58,089, 58,089 (Dec. 8, 2017).
47 See Hopi Tribe v. Trump, Case No. 1:17-cv-02590-TSC (D.D.C. Dec. 4, 2017).
48 See Modifyi ng the Bears Ears Natio nal Monument, supra note 45, at
58,085; Modifying the G rand Staircase -Escalante National Monum ent, supra
note 46, at 58,093.
49 See, e .g., Remarks by President Tru mp at Signing of Executive Order o n
the Antiquit ies Act (Apr. 26, 2018) https://www.whitehouse.gov/br iengs-
(declaring that “[t]oday, I am sign ing a new executive order to end ano ther
egregious abus e of federal power, and to give that power ba ck to the states
and to the people, whe re it belongs”).
43 U.S.C. § 1331(a) (2012).
51 Id. at § 1331(b)–(c).
52 Id. at § 1341(a) (“The Preside nt of the United States may, from ti me to
time, withd raw from disposition any of t he unleased lands of the out er Conti-
53 Briefer on Pres idential Withdrawal Unde r OCSLA Sec. 12(a), nat. ReS.
Def. council (2016), https://www.nrdc.org/sites/default/les/briefer-on-
ocsla-withdraw al-authority_ 20161121_0.pdf [herein after natuRal ReS ouRceS
54 See id. (referri ng to President’s power to bar dispo sition of land or titles
under federa l marine waters).
55 54 U.S.C. § 320301(a)–(b).
56 nat. ReS. Def. council, supra not e 53, at 2.
57 Id. at i (providi ng a chronology of withdrawa ls under §12(a), but not
including Pre sident Obama’s December 20, 2016, withdrawal of nearly 115
million acre s of the Arctic Ocean and 3.8 mi llion acres off the Atlant ic coast;
earlier in the ye ar, President Obama excluded thos e areas for a ve-year
period, ma king the exclusion perma nent following the results of the Novem -
ber election and befor e President-elect Trump to ok ofce).
58 See League of Con servation Voters v. Donald Trump, No. 3:17-cv-
00101-SLG, 2019 WL 1431217, *5 (D. Alaska, Mar. 29, 2019) (“The text of Sec-
tion 12(a) refers only to the withdrawa l of lands; it does not expressly authoriz e
the President to revoke a pr ior withdrawal. Congres s appears to have expressed
one concept - withd rawal - and excluded the converse - revocation .”).
59 Section 12(a) does say the Presid ent “may, from time to time, wit hdraw
from disposit ion any of the unleased land s of the outer Continenta l Shelf.”
43 U.S.C. § 1341(a).
60 In 1990, President Geor ge H.W. Bush issued a presidentia l directive
ordering the I nterior Depart ment not to conduct offshore lea sing or preleasing
activity in pl aces other than Texas, Louisia na, Alabama, and pa rts of Alaska
until 2000 —prohibiting lea sing in the same areas cover ed by the annual
moratoria en acted by Congress th rough the Interior app ropriations process.
President Clint on extended the tempor ary offshore leasing proh ibition until
2012, while perman ently withdrawing ar eas designated as mar ine sanctuar-
ies. Then, in 20 08, President George W. Bush revoked the ti me-limited
withdrawal but lef t in place President Cli nton’s permanent withdrawal
comprising ap proximately 10.8 million acres of ma rine sanctua ry. See Bush,
G.W. Memorandum on Mo dication of the Withdrawa l of Areas of the United
States Outer C ontinental Shelf from L easing Disposition, 44 Week ly Comp.
Pres. Docs. 986 (July 14, 2008).
61 nat. ReS. Def. council, supr a note 53, at 2. Note that the perma nent
withdrawal is d esignated “for a time pe riod without specic expi ration,”
language whic h President Obama used in h is most recent withdraw als under
62 Implementing a n America-First Off shore Energy Strateg y, Exec. Order
No. 13795, 82 Fed. Reg. 20,815, 20,815 (Apr. 28, 2017) [hereina fter Imple-
menting an Am erica-First Offshore En ergy Strategy].
Id. at 20,816.
64 Northern Be ring Sea Climate Resil ience, Exec. Order No. 13754, 81 Fed.
Reg. 90,669, 90,669 (Dec. 9, 2016) (discussing in Sectio n 3 the withdrawal
“from dispo sition by leasing for a time per iod without specic expir ation
the following area s of the Outer Continent al Shelf: [(1) Norton Basin Plan -
ning Area; a nd (2) St. Matthew-Hall Plannin g Area]. The . . . withdrawal
prevents consider ation of these areas for fut ure oil or gas leasing for pu rposes
of exploration, developme nt, or production. This w ithdrawal furt hers the
principles of resp onsible public stewardship e ntrusted to this of ce and takes
due considerat ion of the importance of the w ithdrawn area to A laska Native
tribes, w ildlife, and wildlife hab itat, and the need for regiona l resiliency in
the face of climate c hange. Nothing in this w ithdrawal affects r ights under
existing lea ses in the withdraw n areas.”).
65 Implementing a n America-First Off shore Energy Strateg y, supra note 62,
at 20,816, Section 4(c).
66 These were preside ntial memoranda effect ing “Withdrawal of Cer tain
Areas of the Unit ed States Outer Conti nental Shelf from Leasi ng Disposition”
issued on Decemb er 20, 2016, January 27, 2015, and July 14, 2008. It appears
that the Trump O rder leaves in place a memoran dum of December 16, 2014
withdrawi ng the North Aleutian Ba sin Planning Are a, including Bristol Bay,
offshore Alaska .
67 Implementing a n America-First Off shore Energy Strateg y, supra note
62, § 5. Presumably, the Adm inistration wante d to avoid challenge under the
Marine Prot ection, Research, an d Sanctuaries Act, wh ich requires speci c
procedures a nd ndings of the Secret ary of Commerce before a ma rine sanc-
tuary de signation could be withd rawn. See 16 U.S.C. § 1434 (2012).
68 See League of Con servation Voters v. Donald Trum p, 303 F. Supp. 3d
985 (D. Alaska, 2018) (citing Memorandu m in Support of Plaintiff s’ Motion
for Summar y Judgment asserti ng that President Trump’s withdr awals under
OCSLA exceed preside ntial powers.
69 League of Conse rvation Voters v. Donald Trump, No. 3:17-cv-00101-SLG,
2019 WL 1431217, *16 (D. Alaska, Mar. 29, 2019).
70 Id. at 30.
71 Congress ca n also stipulate that the P resident use one or another of t hese
instru ments for a particula r purpose. See kenneth m ayeR, with the StRoke
of a pen: executi ve oRDeRS an D pReSiDenti al poweR 58 (2001).
72 16 U.S.C. §§ 431–433; 43 U.S.C. §§ 1331–1356.
73 For instance, bot h proclamations and execut ive orders have been used
to create forest r eserves. See u.S. DepaRtment of aGR icultuRe: foReSt
SeRvice, eStabliShment a nD moDification of national foReSt bou nDaR-
ieS – a chRonoloGical R ecoRD 1891–1973 (2012). President Obama declared
and withdrew l and for monuments throug h presidential proclama tion, even
though prior P residents styled the with drawals as executive order s. Maybe
telling is tha t Obama’s most recent Proclamations of nat ional monuments
were widely repor ted in the media as “execut ive orders.” Meanwhile, to
withdraw ar eas of the outer continent al shelf under his OCSLA aut hority,
Obama issued pr esidential memoranda . The Obama WhiteHouse.gov deli n-
eated “Preside ntial Actions” as, separ ately, Executive Orders, Preside ntial
Memoranda, a nd Proclamations. See P residential Actions, the whi te houSe,
https://obamawhitehouse.archives.gov/brieng-room /presidential-actions .
28 Sustainable Development Law & Policy
74 Mary Woodward , Executive Orders: A Jour ney, 10 leGal RefeRe nce
SeRviceS Q. 125, 126 (1990) (explaining t hat neither the Constit ution nor any
statute de nes an executive order).
75 See comm. on Gov’t opeRationS, exe cutive oR DeRS anD pRocla mationS:
a StuDy of a uSe of pReSiDent ial poweRS vii (1957) (observing t hat that
proclamations p rimarily affect t he activities of private i ndividuals, while
executive orders us ually affect private of cials only indirectly). The au thors
of the study reas oned that, “since the Pre sident has no power or authorit y over
individual cit izens and their rig hts except where he is grant ed such power and
authority by a pr ovision in the Constitut ion or by statute, the Pre sident’s proc-
lamations ar e not legally binding and are at b est hortatory u nless based on
such grants of aut hority.” Id. Subsequent accounts su ggest that Presidents “ar e
more apt to utili ze executive orders on matte rs that may benet from publ ic
awareness or be su bject to heightened scru tiny,” while Memoranda typica lly
carry out mo re routine executive decision s, or to “perform duties c onsistent
with the law or implem ent laws that are presidenti al priorities.” vivian S. chu
anD toDD GaRvey, executive oR DeRS: iSSuance, moDification an D Revoca-
tion 3 (2014). Proclamations seem to va ry widely from merely decla ratory
in effect to thos e with substantive impa ct. See louiS fiSheR, the law of the
executive bR anch, pReSi Dential poweR 103 (Stephen M. She ppard, 2014).
76 See generally mayeR , supra note 71, at 58.
77 Id. at 58–59 (citing comm. on Gov’t opeRationS, exe cutive oR DeRS anD
pRoclamationS: a StuDy of a uSe of pReSi Dential poweRS 4 –5 (1957)).
78 chu & GaRvey, supra note 75, at 2.
79 See Today in History – No vember 26, libRaRy of conG., https://www.loc.
gov/item/today-in- history/november-26/ (last visite d Mar. 28, 2019) (chroni-
cling the histo ry of the Thanksgiv ing Proclamation) [herei nafter Today in
History – Novemb er 26].
80 The “vesting clau ses” of the U.S. Constitution co nfer three discret e types
of authority on t hree branches, witho ut an explicit requirement of se paration
of powers or checks and ba lances. Art. I § 1 read s “[a]ll legislative Powers
herein gra nted shall be vested in a Cong ress of the United States , which shall
consist of a Senate a nd House of Representatives. Se e u.S. conSt. art. I § 1.
Article II § 1 re ads “The executive Power shall be ve sted in a President of the
United States of A merica.” Id.
81 Implementi ng an America-First Of fshore Energy Strateg y, supra note 62,
at § 2.
82 Though these a rguments have been ma de, they are no longer at issue. Se e
Getches, supra not e 20, at note 46.
83 chu & GaRvey, supra note 75, at 7.
84 The Mexico Cit y Policy: An Explainer, kaiSeR family founD.
(Jan. 28, 2019), https://www.kff.org/global -health-policy/fact-sheet /
85 chu & GaRvey, supra note 75, at 7 (chronicling a lon g line of substantive
changes to Execut ive oversight through issua nce, modication and revoc ation
of executive orders).
86 See Today in History – Nov ember 26, supra note 74.
87 yoo & Ganziano, supra note 33, at 7 (emphasis ad ded).
88 Id. at 8 (explaining, for exa mple, that the Constitut ion describes no pro-
cess for repeal ing a statute).
90 Id. at 9.
91 See Gorbach v. Reno, 219 F.3d 1087, 1089 (9th Cir. 2000) (en banc) (“We
must decide whethe r the power to confer citize nship through the pro cess of
natural ization necessari ly includes the power to revoke that cit izenship. We
conclude that it does n ot.”).
92 See id. at 1090, 1095.
93 See id. at 1091, 1095.
94 See id. at 1095.
97 See yoo & Ganziano, supra note 33, at 5-9.
98 For instance, Yoo and Gan ziano cite that the Pre sident can unilatera lly
undo an appoint ment without the Senate’s approval, eve n though this negates
the earlier Sen ate conrmation of t he appointee. Id. at 9 (citing Myers v.
United States , 272 U.S. 52 (1926)). A plurality of the Supreme C ourt also
allows the Preside nt to unilaterally te rminate a treat y even though the treat y
required t he advice and consent of the Sen ate to be formed. Id. (citing Gold-
water v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (vacated by Goldwate r v. Carter,
444 U.S. 996 (1979)); Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002)).
99 Gorbach, 219 F.3d at 1095.
100 yoo & Ganziano, supr a note 33, at 7 (citing Pennsylvania v. Lynn, 501
F.2d 848, 855-56 (D.C. Cir. 1974)).
101 Id. yoo & Ganziano, supra not e 33, at 9 (citing INS v. Chadha, 462 U.S.
102 Review of Design ations Under the Antiqu ities Act, 82 Fed. Reg. at 20,429
(Apr. 26, 2017).
103 Congres s can inuence or even largely blo ck national monument
implementatio n through fundi ng restrictions. Th e fact that it funds monu-
ments, even contr oversial ones, suggests it ha s ratied the withdr awals. A
ratication -through-appropr iation theory might s trengthen over time, w ith
subsequent appr opriations. The arg ument would also not hold for the most
recent withd rawals, such as Bears Ea rs, which has not existed du ring an
appropriat ions cycle.
104 16 U.S.C. § 1 (2012) (directing man agement of the national parks “ to con-
serve the scene ry and the natural an d historic objects and the wild life therein
and to provide for the enjoyme nt of the same in such manner and by such mea ns
as will leave them un impaired for the enjoyment of fut ure generations.”).
105 See RoSenbaum et a l., supra note 37, at 13 (citing 54 USC §§ 100102(2),
100501 (2012)) (dening “National Pa rk System” to include any area a dminis-
tered by the Nation al Park Service, includ ing for “monument” pur poses).
106 See 36 C.F.R. § 1.2 (National Pa rk Service regulat ions apply to federally
owned land ad ministered by NPS); see ge nerally 36 C.F.R. § 7. The Interior
Depart ment regulations for park s and monuments vary w idely; some are
extensive manage ment plans, others are r elatively short or nonexistent for
specic park s or monuments. There is a n argument that revoki ng a national
monument would also ef fectively rescind any applicable r egulation or man-
agement plan, req uiring some process u nder the Administ rative Procedure
Act. It would depend on the p rocess used in implemen ting the regulation
in the rst plac e, whether through not ice and comment rulem aking or the
agency found good cau se to waive notice and comment b ecause the regula-
tions “don’t expand on the act ion already taken by the P resident.” Id.
107 See RoSenbaum et a l., supra note 37, at 13.
108 54 U.S.C. § 100101(b)(12).
109 See Mist retta v. United States, 488 U.S. 361, 372 (1989) (citing J. W.
Hampton, Jr. & Co. v. United State s, 276 U.S. 394, 406 (1928)).
110 See gener ally Whitman v. Am. Trucki ng Ass’n, Inc., 531 U.S. 457 (2001)
(examining whet her the Clean Air Act had i mpermissibly delegated leg isla-
tive power to the Envi ronmental Protect ion Agency).
111 See infra Pa rt II(A).
112 Propos ed Abolishment of Castle Pinc kney National Monument, 39 Op.
Att’y. Gen. 185, 186 (1938) [hereinafte r Pinckney].
See id. at 187.
See id. at 186–187 (“[I]f public land s are reserved by the Pre sident for a
particul ar purpose under ex press authority of an ac t of Congress, the Presi-
dent is thereaf ter without authorit y to abolish such reserva tion.”).
115 See Cast le Pinckney Uses, nat’l paRk SeRv., https://ww w.nps.gov/fosu/
learn/ historycultu re/castle-pinckney-use. htm (last visited Apr. 10, 2019).
116 See Pinckney, supra not e 112, at 186. The justicat ion for abolishing
the monument was t hat the fort was in need of rep air, that the public had not
“manifeste d any great interest i n it as an object of historical i mportance,” and
that the expen se of restoring the fort for “ future preser vation” was unjustied.
Id. Furthe rmore, the War Depart ment was already using t he land for storage
purposes a nd wanted to continue doi ng so. Id.
117 See id. at 189.
118 Id. at 188 (citing Rock Island M ilitary Reserv ation, 10 Op. Att’y Gen. 359,
119 See Rock Isla nd Military Reser vation, 10 Op. Att’y Gen. 359, 361–62
(1862) (“This view of the Executive aut hority in the premi ses seems to me
to accord so exact ly with the plain and well-acc epted theory of the div ision
of powers in our Gover nment. . . . The appropri ation of the public domain,
either to public or pr ivate use, is eminently a n act of sovereign power. It is
the exercise of owner ship and implies the right of c ontrol over the title. It is
a conversion of the prope rty of the nation equal i n responsibility and g ravity
with the approp riation of the public money and der ives its authority fr om
the same high sou rce. Under our system, t his extreme power resides on ly in
Congress.”); id. at 364–65 (“This select ion of Rock Island for militar y pur-
poses was not, as we have s een, the unauthori zed act of the President; but wa s
made in the exerci se of a discretion vested in h im by Congress.” [Because]
the power to dispo se of the public lands . . . belongs to Cong ress, and not to
the President . . . th e reservation of Rock Island for m ilitary purp oses derives
its validity . . . pr imarily from the s tatute which authori zed that selection.”);
id. (“[I]nstead of desig nating the place them selves, [Congress] left it to the
discretion of t he President, which is pre cisely the same thing in effe ct.”); see
also 21 Op. Att’y Gen. 120, 121 (1895); 17 Op. Att’y Gen. 168 (1881); 16 Op.
Att’y Gen. 121, 123 (1878).
120 See mayeR, supra not e 71, at 35; see also Jenki ns v. Collard, 145 U.S. 546,
560–61 (18911892) (when a President issues a pro clamation on matters eit her
within the P resident’s inherent powers or to exe cute a delegated authority, the
proclamation ha s the force of law); Indep. Meat Packers Ass’n v. Butz, 526
F.2d 228, 234 (8th Cir. 1975); see also Gnotta v. Unites State s, 415 F.2d 1271,
1275 (8th Cir. 1969).
121 mayeR, supra note 71, at 35–36; see also Marks v. Cent. Intel ligence
Agency, 590 F.2d 997, 1003 (D.C. Cir. 1978) (noting that an execut ive order
cannot super sede a statute).
122 See generally yoo & Ganzia no, supra note 33 (prov iding their main
critiques of the AG opin ion as: (1) its reliance on trust law to sug gest that a
great of power to cre ate something must includ e the power to abolish it; (2) its
reading of the or iginal purpose s of the Antiquities Act; and (3) genera l lack of
support and d epth of analysis for its conclusion th at the President is without
authority to r evoke the Castle Pinckney Nat ional Monument).
123 The challenge rs in the OCSLA action cite th e Attorney General opi nion
as persuasive au thority for a strict re ading of the OCSLA text. See Me mo-
randum in Sup port of Plaintiffs’ Motion for Sum mary Judgment, L eague of
Conservat ion Voters v. Donald Trump, 303 F. Supp. 3d 985 (D. Alaska 2018).
The Court ag reed those opinions a re “persuasive.” See Leag ue of Conserva-
tion Voters v. Donald Trump, No. 3:17-cv-00101-SLG, 2019 WL 1431217,
*10 (D. Alaska, Mar. 29, 2019) (noting that “Congress ha s used the terms
‘withdrawal’ and ‘re servation’ interchange ably for many decades.”)
124 See yoo & Ganziano, supra n ote 33, at 5 (explaining that Attorn ey Gen-
eral opinions a re binding on executive bra nch agencies, but a president is f ree
to disregard t hem – especially if he conclude s that his oath to take ca re that
the laws are faith fully executed con icts with such an opinion.)
125 Federal Land Policy a nd Management Act of 1976, 43 U.S.C. § 1701(a)(4)
(2012) (“[I]t is the policy of the United Stat es that Congress exercis e its con-
stitutional t o authority withdr aw . . . Federal lands for specic pu rposes and
that Congres s may delineate the extent t o which the Executive may withdr aw
lands without leg islative action.”).
126 James R. Rasba nd, The Future of the Anti quities Act, 21 J. lanD
ReSouRceS & envtl. l . 619, 625 (2001).
127 coGGinS, supr a note 20, at 340.
128 John Yoo and Todd Ganziano, Opi nion: Trump Can Reverse Obama’s
Last Minute Lan d Grab, wall St. J. (Dec. 30, 2016), https://www.wsj.com/
article s/tru mp-ca n-revers e-obama s-last-m inute-la nd-gra b-1483142922.
129 Getches, sup ra note 20, at 279.
130 See United St ates v. S. Pac. Transp. Co., 543 F.2d 676, 686 (9th Cir. 1976)
(“We recognize tha t even after 1975, the President or the Sec retary of the
Interior cou ld still alter the bound aries of, or even extingu ish completely, an
executive order rese rvation in order to ma ke way for a railroad.”); id. at 690
(“[b]efore Congress proh ibited future cha nges in Indian reser vations by exec-
utive order, it was commo n practice for the President t o terminate or red uce
in size executive ord er reservations wit hout payment of compensation .”); see
also Rasband, supra not e 126, at 626 (“It thus appears that if a w ithdrawal is
accomplished by exec utive authority implied f rom congressional silenc e, a
court wil l be more willing to recog nize implied author ity in the executive to
undo what it has al ready done.”).
131 Numerou s examples appear in India n Affairs: Laws and Treaties, a
seven-volume compilatio n of U.S. treaties, laws and executive ord ers pertain-
ing to Native Amer ican Indian trib es compiled by Charles J. Kappler i n the
early twentiet h Century and r st published in 1903-1904 by the Governme nt
Printin g Ofce. See, e.g., ch aRleS J. kapple R, 1 inDian a ffaiRS: lawS anD
tReatieS 467, 740 (Government Printing O fce 1904); chaRleS J. kappleR, 3
inDian affaiR S: lawS anD tReatieS 694 (Government Pr inting Ofce 1913);
chaRleS J. ka ppleR, 7 inDian a ffaiRS: lawS anD tReatieS 1463, 1505 (Gov-
ernment P rinting Ofce 1971). Oklahoma State Un iversity has digitiz ed the
work, librar y.okstate.edu/kappler/i ndex.htm. The langu age used to revoke a
reservatio n is sometimes, litera lly, “hereby revoke,” and other times act ion to
“restore to the p ublic domain” lands previou sly reserved. See WM. H. Taft,
Exec. Order No. 522 (April 24, 1912) (“it is hereby ordered t hat Executive
order dated Aug ust 25, 1877, setting asid e certain descr ibed land in the State
of California for I ndian purposes , be, and the same hereby is, revoke d in so
far as it relates to t he south half of section 20, town ship 3 south of range 1
east of the San Ber nardino meridia n.”); see also WM. H. Taft, Exec. Order
No. 1224 (July 7, 1910) (“It is hereby ordered th at Executive orders of August
25, 1877, March 9, 1881, and December 29, 1891, reserving cert ain described
lands in the St ate of California for India n purposes be, and t he same are
hereby, modied and a mended in so far as to rest ore to the public domain for
the purpos e of settlement and entr y the tracts descr ibed as follows. . .”).
132 See 7 inDia n affaiRS, supra note 131 (stating the opi nion of Attorney
General Harla n F. Stone, “Whether the Preside nt might legally abolish, in
whole or in part, I ndian reservatio ns once created by him, ha s been seriously
questioned (citation o mitted) and not without st rong reason; for the India n
rights att ach when the lands are thu s set aside; and moreover, the lands
then at once becom e subject to allotment unde r the general allotment a ct.
Nevertheless, t he President has in fact, a nd in a number of instan ces, changed
the boundar ies of Executive order Indian r eservations by excluding l ands
therefrom, a nd the question of his author ity to do so has not apparen tly come
before the cour ts . . . .When by an Executive order public land s are set aside,
either as a new Ind ian reservation or an a ddition to an old one, without f urther
language in dicating that the act ion is a mere temporary ex pedient, such lands
are thereaf ter properly known an d designated as an India n reservation; and
so long, at least, as t he order continues in force t he Indians have the right of
occupancy and u se, and the United States h as the title in fee.”).
133 Getches, sup ra note 20, at 285.
134 Id. at 280.
135 236 U.S. 459 (1915).
136 Id. at 469; see also Get ches, supra note 20, at 290– 92.
137 See Christi ne A. Klein, Preser ving Monumental Lands capes under the
Antiquities Act, 87 coRnell l. Rev. 1333, 1355–63 (2002) (elaborating when
presidential aut hority is strengt hened by congressional ac quiescence).
138 Pamela Baldwin , authoRity of a pReSiDent t o moDify oR eliminate a
national monument 2 (20 00).
139 National Forest Man agement Act of 1976, Pub. L. No. 94-588, § 9, 90
Stat. 2949 (1976) (“Notwithsta nding the provisions of the Act of Ju ne 4, 1897.
. . . no land now or hereaf ter reserved or withd rawn from the public dom ain as
national forest s pursuant to the Act of March 3, 1891. . . or any act supplemen -
tary to an d amendatory there of, shall be returned to the p ublic domain except
by an act of Congre ss.”) (emphasis adde d).
140 Federal La nd Policy and Management Act, 43 U.S.C. §§ 1701–1782 (2012).
141 public lanD law Rev iew comm’n, one thiRD of t he nation’S lanD: a
RepoRt to the pReSiDe nt anD the conGR eSS 54–57 (1970).
142 Pub. L. No. 94–579, § 704(a), 90 Stat. 2743 (1976) (citing U.S. v. Midwest
Oil Co. in repeal ing the implied executive aut hority).
143 public lanD l aw Review comm’n, supra note 141, 54–55.
144 Id. at 55.
145 See balDwin, s upra note 138, at 2.
146 Federal La nd Policy and Management Act, 43 U.S.C. § 1702(e) (2012).
147 The Forest Serv ice Organic Act of 1897, ch. 2, § 1, 30 Stat. 11, 36 (repealed
1905) (asserting that “t o remove any doubt which may exist pertain ing to the
authority of the Presid ent thereunto, the President of the Unite d States is hereby
authorized a nd empowered to revoke, modify, or suspend any and all such Execu -
tive orders and proclama tions, or any part thereof, from t ime to time as he shall
deem best for the public intere sts” and that “[t]he President is hereby authorize d at
any time to modify a ny Executive order that has been or may hereaft er be made
establishi ng any forest reserve, and by such modicat ion may reduce the area or
change the bounda ry lines of such reserve, or may vacate altoget her any order
creating such res erve”). See generally Rober t Bassman, The 1897 Organic Act: A
Historical Persp ective, 7 nat. ReS. l. 503, 510 (1974) (providing a rich backstor y
to the inclusion of the revocation provi sion). Basically, this legislation was the
culminat ion of years of controversy surround ing the withdrawal of considera ble
tracts of federal la nd for forest reserves, start ing with the Act of March 3, 1891.
Id. President Cleveland had is sued 13 proclamations establishi ng forest reserves
in 7 states, which outr aged Western public ofcials. An earlier ap propriations bill
in 1897 including a proposal to abolish the re servations and an amend ment to give
the President author ity to abolish any and all reserves. T he Western members
were opposed to relying on the P resident to abolish the reserves hi mself claiming
that they could not tr ust the President to revoke his own orders. The n al compro-
mise did not specical ly abolish President Cleveland’s earlier withdraw als, but
instead gave him the aut hority to do so. Id.
148 The Forest Se rvice Organic Act of 1897, ch. 2, § 1, 30 Stat. 11, 36
149 16 U.S.C. § 473 (2012).
150 Desert La nd Act, 43 U.S.C. § 641 (“The Secretary of the Inte rior may, in his
discretion, c ontinue said segregation fo r a period not exceeding ve year s, or
30 Sustainable Development Law & Policy
may, in his discretion, res tore such lands not irrigated an d reclaimed to the public
domain upon the expir ation of the ten-year period or of any extension there of.”).
151 1910 Pickett Act, ch. 421, 36 Stat. 847 (1910) (repealed 1976) (expressly
authorized t he revocation or vacating of exec utive orders or proclamation s
creating fores t reserves under the Act of March 3, 1891, ch. 561, 26 Stat. 1103).
152 See Rasband, su pra note 121, at 627 (afrmi ng an established canon of
statutor y interpretatio n that the court should avoid re ading a statute in a way
that would render st atutory langu age superuous).
153 43 U.S.C. § 1701 (“All withdrawals, r eservations, classi cations, and
designations i n effect as of the date of approval of th is Act shall remain in
full force and ef fect until modied u nder the provisions of this Act or ot her
154 43 U.S.C. § 1714.
156 Getches, su pra note 20, at 316-17 (describing that t he revocations were not
made accordi ng to the prescribed p rocedures for referra l of the Secretary’s
recommend ations for continuation or t ermination of withd rawals).
157 43 U.S.C. § 1714(j).
158 H.R. Rep. 94-1163 at 9 (1976) (“With certain exceptio ns, H.R. 13777 will
repeal all exi sting law relating to execut ive authority to create , modify, and
termin ate withdrawals and re servations. It would reser ve to the Congress the
authority to c reate, modify, and ter minate withdrawa ls for national parks,
national forest s, the Wilderness Syste m, Indian reserva tions, certain defe nse
withdrawals . . . . It wou ld also specically rese rve to the Congress the
authority to m odify and revoke withdr awals for national monument s created
under the Ant iquities Act . . . . These provision s will insure that t he integrity
of the great natio nal resource manageme nt systems will remai n under the
control of the Congr ess.”).
See 39 U.S. Op. Atty. Gen 186 (citing 10 U.S. Op. Atty. Gen. 359 (1862)).
160 See RoSen baum et al., supra note 37 (citing Bledso e v. Palm Beach Cty.
Soil & Water Conserva tion Dist., 133 F.3d 816, 822 (11th Cir. 1998)) (address-
ing legislative act ion after an earlier lega l interpretation by t he Attorney
General); see also United States v. Estate of Romani, 523 U.S. 517, 530-31
(1998) (stating that later congr essional actions need not a mend the earlier
statute in o rder for ratied princi ples of law to govern, particu larly when the
later statu te comprehensively addres ses a subject).
161 See balDwin, supra note 133, at 4-5 (“The FLPMA language addre sses only
actions of the Secret ary, while the Antiquities Act is worded in ter ms of actions
the President may take . . . . However, it appears from the br eadth of the commit-
tee report lang uage that Congress may have believed that co ntrolling revocations
by the Secretar y in this regard would operate to contr ol the revocation of national
monument withd rawals – i.e. to control the actions of the President.”).
162 H.R. 2284, 115th Cong. (2017).
163 For insta nce, the 114th Congress considered prop osals to subject monu-
ment designation s to Congressional and st ate approval, prohibit the P resident
from establi shing or expanding nat ional monuments in par ticular locations,
and make the Pre sident’s authority subject to NE PA or impose othe r require-
ments for consult ation. See vincent, supra note 27, at 11-12. Recent proposals
in the 115th Congress are si milar. See Improved Nation al Monument Designa-
tion Process Ac t, S. 33, 115th Cong. (2017) (“Before a national monument can
be designated on p ublic land, the President mu st obtain congressiona l
approval, cer tify compliance with t he National Environmen tal Policy Act of
1969 (NEPA), and receive notice from t he governor of the state in which t he
monument is to be loc ated that the state legisl ature has enacted le gislation
approving its de signation.”).
164 54 U.S.C. § 320301(a) (2012).
165 Debra Holtz et al., Nat ional Landmarks at Ri sk: How Rising Seas, Flood s,
and Wildres are Th reatening the United States’ Most Cher ished Historic Sites,
union of conceRneD ScientiStS (2014) http://www.ucsusa.org/global_warming/
science_and_impacts /impacts/national-landmark s-at-risk-from-climate-
chang e.ht ml?_g a=1.143705777.562670586.1493413292#.wQvaaRSRlbi.
166 See sup ra Part II(B).
167 Northe rn Bering Sea Clim ate Resilience, supra note 6 4.
169 A 1913 memorandum sum marizing Cong ressional and judicial pro -
nouncements on t he Executive withdrawal aut hority conr ms a one-way
perspective: “ the President in the exerci se of his executive powers stands i n a
position to protec t and administe r the public domain until Co ngress can act.”
3 inDian af faiRS, supra note 131, at 693.
170 Congre ss debated a bill to designa te as wilderness 1.8 mill ion acres
owned by the feder al government in Utah. T he proposal cleared House a nd
Senate comm ittees but was not enacte d. See Justin James Quigley, Grand
Staircase Esc alante National Monumen t: Preservation or Polit ics, 19 J.
of lanD, ReS., & en vtl. l. 55, 69-71 (1999). President Clinton then iss ued
Proclamation 6920 t o establish the Grand St aircase-Escala nte National
Monument, set ting aside approximately 1.7 million a cres under the Antiq ui-
ties Act. 61 Fed. Reg. 50223, 50225 (Sept. 4, 1996). In resp onse, legislation
was introduc ed to provide that for any nation al monument in excess of 5,000
acres, the Pr esident would need an act of Congr ess and the concurre nce of
the governor and t he state legislature. T he House passed the legislat ion, but
the Senate did not . See louiS fiSheR, executive o RDeRS anD pRoclamationS,
1933-99: contRoveRSieS with conG ReSS anD the c ouRtS 18-19 (1999).
171 Fisher, supra note 70, at 106 (“Congr ess can retaliate agai nst executive
orders and procla mations it nds objection able, but moving remedial legisla -
tion throug h both chambers can be an u phill struggle.”).
172 Jonatha n Thompson, Bears Ears a Go – B ut Here’s Where Obama Drew
the Line: The Desig nation’s Concessions are Unlikely t o Appease Ardent
Opponents, hiGh countRy newS (Dec. 29, 2016), https://www.hcn.org/
173 See 5-ye ar Timeline of Tribal Engagement to Pro tect Bears Ears, beaRS
eaRS inteR-tRibal coalit ion, https://bearsearscoalition.org/timeline/ (last
visited March 28, 2019).
174 Proposal t o President Barack Obam a for the Creation of Bears Ear s
National Monum ent, beaRS eaRS inte R-tRibal coalition (oct. 15, 2015)
https://bears earscoalition.org /wp-conte nt/uploads/2015/10/Bears-Ears-I nter-
175 See Ray Ra sker, West Is Best: How Public lands in the West Cre-
ate a Competit ive Economic Advantage, hea DwateRS economicS
(Dec. 2012) https://headwaterseconomics.org/economic -development/
1 See Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 767 (2019) (referencing Inter national
Finance Corpo ration’s motion to dismiss for lack of subject matter juris diction).
3 Id. at 771.
4 See generally 22 U.S.C. § 288 (1945) (codifying t he International O rga-
nizations I mmunities Act); 28 U.S.C. § 1605 (2016) (codifyi ng the Foreign
Sovereign Immu nities Act); Jam, 139 S. Ct. at 772 (interpreti ng the IOIA to
allow for the moder n immunities of foreign sover eigns under FSIA).
5 Jam, 139 S. Ct. at 766.
6 Id. at 768 (quoting 22 U.S.C. § 288a(b)).
7 Id. at 765-66.
9 Id. at 766.
10 Id. at 767.
13 Id. (outlining D.C. Dist rict Court Judge Pill ard’s dissent and the circuit
split between th e D.C. and Third Circuits in 2010).
14 Id. at 772.
15 Id. at 766 (emphasis added) (citi ng 28 U.S.C. § 1605(a)(2) (2016)).
16 See generally OBB Per sonenverkehr AG v. Sachs, 136 S. Ct. 390 (2015)
(declining to rev iew novel argument presente d by petitioners about subst an-
tial contact s with U.S. element); Saudi Arabia v. Nelson, 507 U.S. 349, 358-59,
377-78 (1993) (including numerou s dissents and not reviewi ng substantial
contacts wit h U.S. element because the Cour t did not nd commercial
activity); Republic of A rgentina v. Weltover, Inc., 504 U.S. 607, 611 (1992)
(reviewing only one of th ree scenarios tha t could establish commer cial activ-
ity with subst antial contacts to U.S.).
17 See Jam, 139 S. Ct. at 771.
18 Id. at 772.
19 Id. (emphasis added).
20 Id. (emphasis added).
21 See id.
enDnoteS: Jam v. ifc: one Step foRwaRD, two StepS back?
continued from page 16
not violate state ju risdiction merely beca use it substantially af fects intrastat e
electricity m arkets under state ju risdiction and empha sizing the import ance
of the target at which t he regulation aims); Rocheste r Gas & Electric Corp.
v. Public Serv. Comm’n, 754 F.2d 99, 105 (2d Cir. 1985) (holding that me rely
considering o r incorporating wh olesale prices in rate- setting for a state-
regulated ac tivity does not intr ude on federal authorit y).
21 Compare Hughes, 136 S. Ct. at 1297-98 (rejecting Maryland’s subsidy
program becau se it requires subsidy recipient s to sell electricity th rough PJM’s
capacity auctio n and guarantees sub sidy recipients an electricit y price distinct
from PJM’s market clearing pr ice) with Elec. Power Supply Ass’n v. Star, 904
F.3d 518, 524-25 (7th Cir. 2018) (permitting Ill inois’ nuclear energy subsidy
because it does not cond ition payment on recipients clear ing the RTO capacity
auction nor regula tes the rate or transac tion terms of wholesale power).
22 See generally Elec . Power Supply Ass’n, 136 S. Ct. at 782 (dening the
scope of judicial rev iew of FERC agency rulemaki ng under the arbitra ry and
capricious sta ndard as determ ining whether the agen cy reviewed all salient
consideration s and articulated a r ational explanation con necting facts found
with the choice mad e).
23 Id. at 769.
24 Calpine Corp. v. PJM Interc onnection, LLC, 163 F.E.R.C. ¶ 61,236, 2018
WL 3360507, at *16 (2018).
25 See Subsidy S hort List, PJM Capacity Const ruct/Public Policy Sen ior Task
Force Meeting, (June 5, 2017), http://www.pjm.com/-/med ia/committ ees-
20170531.ashx (listing over 100 sub sidy programs in PJM state s signicantly
enDnoteS: feRc RulinG unDeRmineS eneRGy feDeRaliSm anD aRbitRaRily taRGetS miD-atlantic ReGion RenewableS
continued from page 18
enDnoteS: DoeS impoRtinG enDanGeReD SpecieS’ boDy paRtS help conSeRvation? DiScRetion to impoRt
tRophieS unDeR the tRump aDminiStRation
continued from page 23
reducing the co st of natural gas and coa l production, and thereby s uppressing
capacity bids, i ncluding West Virginia ta x benets for coal, Pennsylva nia
gross receipt t ax exemption on natura l gas utility sales, an d Pennsylvania
sales and use ta x exemption for coal purchase s).
26 From 2013-2014 alone, federal and state suppor t for fossil-fuel based elec-
tricity gene ration exceeded $8.5 billion a nnually. See Ivetta Gerasimchu ck et
al., Zombie Energ y: Climate benets of ending s ubsidies to fossil fuel pro duc-
tion, int’l inSt. foR SuStainable Developme nt, viii (2017), https://www.iisd.
27 See Calpine Corp., 163 F.E.R.C. at *51 (Glick, C. dissenting) (noti ng that,
by mitigating low-e missions electricit y subsidies, FERC allows GENCOs
to focus only on pr ivate generation costs an d disregard the exter nal societal
costs of fossil fuel- based electricity).
28 Sylwia Bialek & Burci n Unel, Capacity Marke ts and Externalities: Avoid-
ing Unnecessar y and Problematic Refor ms, inSt. foR policy inteGRity at
12 (2018) (explaining tha t climate change damage s associated with a ty pical
1,000 MW coal plant exce ed $230 million annually).
29 See EPA, Energy and Envi ronment Guide to Action: Re newable Portfolio
Standards 5 -2 (2015), https://www.epa.gov/sites/pro duction/les/2017-06/
30 See Coal. for Compet itive Elec. Dynegy Inc., v. Zibelman , 272 F. Supp.
3d 554, 560 (S.D.N.Y. 2017) (permitting New York’s nuclear energy s ubsidy
because GENCO rec ipients receive credits for ren ewable energy’s environ-
mental att ributes which are bought a nd sold separately from RTO mar kets).
4 See North and So uth, The (Global), inteRnational encyclopeDi a of the
Social ScienceS , https://www.encyclopedia.com/social-sciences/applied-
and-social-s ciences-magazines /north-and-sout h-global (explaining Europe,
Canada, t he United States, Austr alia, New Zealand, and Jap an are examples
of the Global North, a s they have been developed for many yea rs).
5 See Diana mitlin & DaviD SatteRth waite, uRban poveRty in th e Glob.
South: Scale anD natu Re 13 (2013) (dening t he Global South as all coun-
tries classi ed as low- and middle-income by t he World Bank in Africa, Asia ,
Latin Amer ica, and the Caribbe an, as compared to the mo re prosperous and
developed Global Nort h).
6 Myanna Delli nger, Trophy Hunting Contracts: Unen forceable for Rea-
sons of Public Policy, 41 colum. J. envtl . l. 395, 396 (2016). See generally
16 U.S.C. § 1532(16) (2012) (dening species a s any subsection of wildli fe or
sh and “any disti nct population segment of a ny species of vertebrate sh o r
wildlife” tha t interbreeds at the age of mat urity).
7 See § 1532(3) (dening conse rving as all method s necessary to get
endangered a nd threatened spec ies to the point which the meas ures to protect
them are no longer ne cessary. These method s include habitat mainten ance,
transpla ntation, and live trappi ng. Regulated taki ng is only allowed in
extraordi nary cases where popu lation pressures can not be otherwise relieved).
8 About the U.S. Fish a nd Wildlife Service, u.S. fiSh & wilDlife SeRv. (last
updated May 31, 2018), https://www.fws.gov/help/about_us. html.
10 See § 1531(a)(1)–(3) (stating that economic growt h and development without
adequate conc ern and conservat ion have caused species to become exti nct); see
also H.R. Rep. No. 97-567, at 9 (1982) (explaining that previous ef forts included
the Endangere d Species Preservation Act of 1966 and the End angered Species
Conservat ion Act of 1969); see also Endangered Spec ies Act, u.S. fiSh anD
wilDlife SeRv., https://www.fws.gov/endang ered/laws-policies.
11 Endangere d Species Act, u.S. fiSh anD wilDlife SeRv. enDanGeReD
SpecieS, https://w ww.fws.gov/endangered/laws-p olicies (last visited Mar. 10,
2019) (summarizing the ESA a nd its history).
12 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978) (stating that the ESA
requires th at federal agencies do not act in a way that wi ll jeopardize the exis-
tence of an endange red species and that under th e ESA, Congress intended tha t
the protection of end angered species would be given the “h ighest of priorities”).
13 See § 1533 (a)(1) (laying out that a species i s considered endangere d or
threatene d depending on: “(1) [t]here is the present or thr eatened destruc tion,
modication, o r curtailment of its h abitat or range . . . (2) overutiliza tion for
commercial, r ecreational, scienti c, or educational pur poses (3) disease or
predation (4) the inad equacy of existing reg ulatory mechanis ms [or] (5) . . .
other natu ral or manmade facto rs affecting its conti nued existence”); see also
Safari Club Int ’l v. Jewell, 960 F. Supp. 2d 17, 27–28 (D.D.C. 2013) (quoting
M. Lynne Corn et a l., Cong. Research Serv., RL31654, The Endangered
Species Act: A Pri mer, at 5 (2012)) (explaining that the ESA is con sidered suc-
cessful when it help s stabilize or increa se the populations of liste d species).
14 § 1531(b) (establishing t he purpose of the ESA as “a mean s whereby
the ecosystem s upon which endangered s pecies and threaten ed species
depend may be con served, to provide a prog ram for the conservatio n of such
endangered s pecies and threaten ed species”).
15 See § 1538(a)(1) (dening “take” to i nclude harm, haras s, pursue, hunt,
shoot, wound, ki ll, trap, capture, o r collect).
16 § 1532(8) (expanding the denition of “ sh or wildlife” to dead an imals).
17 §§ 1539(a)(1)(A)–(B) (empowering the Ser vice to permit a tak ing of an
endangered or t hreatened anim al).
Id. (enumerating th e reasons for which the Serv ice can give a permit).
20 5 U.S.C. § 706(2)(A) (stating tha t a reviewing court sha ll hold unlawful
any agency action t hat is arbitrary, capr icious, or otherwise u nlawful).
21 See infra Par t II.
23 See infra Part III.
24 See infra Part IV.
25 See infra Part V.
26 About the U.S. Fish a nd Wildlife Service, supra note 8.
29 Id.; see also About Us, u.S. fiSh & wilDlife SeRv., https://www.fws.gov/
internat ional/about-us/ (last vi sited February 24, 2019) (showing how the
Service’s Intern ational Affairs prog ram helps with inter national conserva tion
by admini stering grant prog rams that suppor t human and instit utional capac-
ity building a nd research, providin g technical assista nce to wildlife manager s
worldwide, regulat ing internation al trade, and regul ating species export ed
from the United St ates).
30 See generally Inter national Affairs, u.S. fiSh & wilDlife SeRv., https://
www.fws.gov/inter national/ (last visit ed Feb. 24, 2019).
32 Sustainable Development Law & Policy
31 See generally Pe rmits, u.S. fiSh & wilDli fe SeRv., https://www.fws.gov/
internat ional/permits / (last visited Feb. 24, 2019).
32 See generally Inte rnational Affairs Pro gram Strategic Frame work
(2014-2019), u.S. fiSh & wilDli fe SeRv. (Aug. 2014), https://www.fws.gov/
international/strategic-plan.pdf; see also Treaties and Co nventions, u.S.
fiSh & wilDlife SeRv., https://www.fws.gov/international/laws-treaties-
agreements /treaties-and- conventions/ (last visite d Feb. 24, 2019) (stating that
many inter national programs a re based on conventions, li ke the Convention
on Interna tional Endangered Spec ies and the Convention on Wetlands of
Internat ional Importanc e).
33 See About Us, nat’l oceanic anD atmoSpheRic aDmi n., https://www.sher-
ies.noaa.gov/about-us (last visited Feb. 24, 2019) (explaining the NM FS is
an ofce of the Nationa l Oceanic and Atmospher ic Administrat ion (NOAA)
within the D epartment of Comme rce which works to establish su stainable
sheries, safe so urces of seafood, and to con serve healthy ecosyst ems); see
also ESA Basics, u.S. fiSh & wilDlif e SeRv. (Jan. 2013), https://ww w.fws.gov/
endangered /esa-library/pdf/ ESA_basics.pdf (outlini ng the Service’s respon-
sibility for deali ng with terrest rial and freshwater sp ecies, while the NMFS
focuses on mar ine wildlife).
34 See generally 16 U.S.C. § 1533(a)–(g) (2012) (listing guidelines for th e
categorizat ion of endangered and th reatened species, habit at conservation,
and protective reg ulations).
35 See § 1531(a)(1)–(3) (stating that economic g rowth and development
without adequ ate concern and conse rvation caused specie s to become
ext inct); see a lso Tenn. Valley Auth. v. Hill, 437 U.S. 153, 177 (1978) (reiterat-
ing that Congr ess was motivated to pass t he ESA in part by the dram atic
increase in t he number and serious ness of threats facing t he planet’s wildlife).
36 S. Rep. no. 93–307, at 2 (1973).
39 Id. at 3.
40 See § 1531(a)–(b) (explaining the backg round of the ESA and that relevant
conventions include t he Convention on Nature Pro tection and Wildlife
Preservat ion in the Western Hemisphe re and the Convention on Inter national
Trade in Endanger ed Species of Wild Fauna and Flora).
41 § 1531(b).
42 § 1531(c) (stating that Federal agencie s must exercise their author ities in
furthe rance of the ESA’s purpose).
43 § 1533(a)(1)(A)–(E).
44 This subsect ion describes why and how dif ferent species are labeled a s
threatene d and endangered. See § 1533(a)(1).
45 § 1533(b).
46 § 1533(d).
47 The Secreta ry must give priorit y to endangered and th reatened species
that are likely t o benet from recovery pla ns. In these plans, the Se cretary
must also descr ibe site-specic ma nagement actions and mea surable criteria
which would result in t he species being removed f rom the endangered or
threatene d species list. See § 1533(f)(1).
48 5 U.S.C. § 553; see Safari Club Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir. 2017).
49 § 553(c).
50 Safari Club Int’ l, 878 F.3d at 335 (quoting Sugar Cane Growe rs Coop. of
Fla. v. Veneman, 289 F.3d 89, 96 (D.C. Cir. 2002)).
51 § 706(2)(A) (stating that an agency cann ot act in a manner that is “arbit rary,
capricious, an abu se of discretion, or otherw ise not in accordance with law ”);
Safari Club Int’ l, 878 F.3d at 325 (stating that when t he court applies the
arbitrar y and capricious standa rd, it must consider whether the age ncy gave an
explanation for its deci sion that runs counter to t he evidence before the agency).
52 Safari Club Int’l v. Jewell, 960 F. Supp. 2d 17, 46 (D.D.C. 2013) (explaining
that agencies must rev iew relevant data and implement satisfa ctory explanations
to establish a ration al connection between da ta collected and the choice made).
54 5 U.S.C. § 706(2)(A) (2012).
55 See Stephen Le e, Endangered Specie s Listings Sharply Down Un der
Tru mp, bloom beRG env’t (Nov. 30, 2018), https://news.bloombergenviron-
ment.com/environment-and-energy (stating that the Tru mp administr ation
has listed fewer sp ecies in its rst twent y-two months than any other p resident
since Ronald Reaga n).
56 See generally Issu ance of Import Perm its for Zimbabwe Elephant Tro-
phies Taken on or Afte r January 21, 2016, and on or Before December 31,
2018, 82 Fed. Reg. 54,405 (Nov. 17, 2017) (to be codied at 50 C.F.R. § 17);
Federal Register Documents, u.S. fiSh & wilDlife SeRv., https://www.fws.
gov/policy/frsystem /default.cfm (last visited Feb. 26, 2019) (compiling nal
rules issue d by the Trump admini stration regardin g endangered and thr eat-
ened wildlife a nd plants).
57 Ya-Wei Li, Section 4(D) RuleS: the peRil anD the p RomiSe, DefenDeRS of
wilDlife 8 (Jan. 2017), https://defenders.org /sites/default/les/publicat ions/
58 Id. at 8–9.
59 Id. at 7 (explaining t hat exceptions are per mitted for conservat ion when
activities a re for an educational, scient ic, or conversation pur pose and are
likely to be conside red “necessary an d advisable”).
60 See Memorandum fr om the Principal Deput y Dir., u.S. fiSh anD wilDlife
SeRv., https://www.fws.gov/interna tional/pdf/memo -withdrawal-of-cer tain-
ndings-ESA-lis ted-species-spor t-hunted-trophies .pdf (Mar. 1, 2018)
(withdrawing e nhancement ndi ngs for trophies of Africa n elephants taken
in Zimbabwe). See generally Me morandum from the Ch ief of the Branch of
Permits, u.S. fiSh an D wilDlife SeRv., https://www.fws.gov/inter national/pdf /
enhanceme nt-nding-March-2015-elephant-Zim babwe.pdf (Mar. 26, 2015)
(determini ng that the Service is u nable to make a nding th at the killing
of elephants in Zim babwe, on or after Januar y 1, 2015, whose trophies ar e
intended for imp ortation into the Un ited States, would enha nce the survival of
the Africa n elephant in the wild).
61 See Sheehan, supra note 1.
64 878 F.3d 316 (D.C. Cir. 2017).
65 See id. at 325–26, 334–36 (holdin g the Service’s reasoning for the ban was
appropriate , but the Service’s failure to use notice-a nd-comment rule making
when it banned the im portation of certai n sport-hunted troph ies was a harmful
error). Because of the proce dural error, the Cour t remanded the case so the Ser-
vice could initia te rulemaking to ad dress enhancemen t ndings for the relevant
time period s which therefore allowed the Servic e to reverse the ban. Id. The
District Cou rt had found that the cour t cannot substitute it s judgment for the
judgment of the Ser vice, especially when the decisio n requires a high level of
technical exp ertise and gave deference to the age ncy. Safari Club Int’l v. Jewell,
213 F. Supp. 3d 48, 80–81 (D.D.C. 2016); see also Sheehan, supra note 1.
66 See Safari Club In t’l, 878 F.3d at 335–36.
67 Exec. Order No. 13,648, 78 Fed. Reg. 40,621 (July 1, 2013).
69 Id. (describing how th e United States will help foreig n governments with
anti-wildlife t rafcking activ ities when requested, p romote the creation and
enforcement of laws th at prohibit the illegal tak ing and trading of s pecies, and
prosecute people w ho partake in wildl ife trafcking).
70 Safari Club Int’ l, 878 F.3d at 323–24.
71 Id. at 324.
72 Id. at 324, 327 (describing that e nhancement ndin gs looked to see if a
country h as a sustainable numbe r of animals to suppor t its hunting program ,
what the manage ment plan is like, if the regu lations are effective to i mple-
ment the hunti ng program, and if the pa rticipation of hunters f rom the United
States provides a cle ar benet to meet the ESA’s special rule requi rement to
import tr ophies).
73 Id. at 328 (opposing the appell ants’ claim that the Serv ice’s negative
enhanceme nt claim was improper bec ause the Service did not ma ke an afr-
mative nding t hat trophy hunting fai ls to enhance the sur vival of the African
elephant in Zimba bwe).
74 50 C.F.R. § 17.40(e)(6)(i)(B) (2019).
75 Safari Club Int’ l, 878 F.3d at 328; 50 C.F.R. § 17.40(e)(6)(i)(B).
76 5 U.S.C. § 553(c) (2012).
77 Safari Club Int’ l, 878 F.3d at 335.
78 Id. at 336.
79 See id. (ruli ng that the Service may i nitiate rulemak ing because the previ -
ous rule did not co mply with all of the technica l requirements of the A PA,
but not specical ly direct the Servic e to issue a new rule); see also Sheehan,
supra note 1.
80 SpecieS SuRvival commiSSion, int’l union foR c onSeRvation of natuRe,
GuiDinG pRi ncipleS on tRophy huntinG a S a tool foR cReatinG conSeRvation
incentiveS, 2 (2012) [herein after Internat ional Union for Conservat ion]; see
also Import of Hun ted Lions, u.S. fiSh & wilDlife SeRv., https://www.fws.gov/
international/per mits/by-activity/sport-hunted-trophies-lions.htm l (demonstrat-
ing the Servic e’s reliance on the Specie s Survival Commission do cument).
81 International Union for Conservat ion, supra note 80, at 7.
83 Id. at 3.
84 Amy Dickman, En ding Trophy Hunting Could Actua lly Be Worse For
Endangered Species, cnn (Jan. 4, 2018), https://www.cnn.com/2017/11/24/
opinions/trophy-hunti ng-decline-of-species- opinion-dickma n/index.html.
85 Id. (explaining tha t if trophy hunting aids co nservation by creati ng habitat
protection and p reventing illegal kill ing of animals then th reatened species
could be bette r off if trophy hunting is lega lly permitted).
87 Id. (stating that t rophy hunting must be well ma naged because poor man-
agement can negat ively impact lion populations).
88 The Lion’s Share? On the Economic Be nets of Trophy Hunting, econo-
miStS at laRGe 5 (2017) [hereinafte r The Lion’s Share].
89 Id. at 5–6.
90 Id. at 6 (explaining that com plicated political climat es, corruption, la ck
of monitoring, ig noring science, not placi ng age limits on hunted spe cies, and
permitt ing hunting in uns table populations are al l factors that contri bute to
the fact that ide al trophy hunting conse rvation programs ca nnot exist).
91 Id. at 15.
92 See generally Hum ane Society, supra note 3 (explaining tha t trophy hunt-
ing is a global busin ess that promotes kill ing contests and that t rophy hunting
could not and does not help c onserve species).
93 See Michael Marka rian, Eco-Tourism Worth More to Afr ican Economies
than Trophy Hunting, huffinGton poSt (Nov. 2, 2015), https://www.hufng-
(discussing how trophy hu nter Walter Palmer paid 55,000 dollars to kil l a lion
that would have generate d about one million dollars fro m eco-tourism dur ing
the lion’s lifetime and how eco-to urism is generally more ben ecial to Africa’s
economy than tr ophy hunting because the tot al revenue gained for eco-tou rism
is much greater for tha n trophy hunting). See generally The Lion’s Share,
supra note 88, at 4; The $200 Million Question, economiStS at laRGe 5 (2013),
94 See generally Huma ne Society, supra note 3.
95 See Trophy Hunting by th e Numbers, humane Soc’y of the u.S. 1, 3
(Feb. 2016), http://www.hsi.org/assets/p dfs/report_t rophy_hunting _by_the.
pdf (explaining th at between 2005 and 2014, an average of more tha n
126,000 trophie s every year were impor ted to the United States). Dur ing that
time period , 5,600 African lion and 4 ,600 African elepha nt trophies were
imported . Id. at 3. Top countries of origin includ e South Africa, Namibi a,
Zimbabwe, Tanzania , and Botswana. Id. at 4. The t op ports of entry for
wildlife tro phies were New York, New York; Pembina, North Dakota ; Chi-
cago, Illinois; Dal las, Texas; and Portal, North D akota. Id. at 1. Additionally,
the Africa Big Five Spec ies include African lion s, elephants, leopard s, white
rhinos, and bu ffalo. Id.
96 Great Elephant Ce nsus Final Results, GReat ele phant cenSuS, ht tp: //
www.greatelephantcensus.com/n al-report (last visit ed July 11, 2018).
97 Colin Dwyer, Trump Admi nistration Quietly D ecides-Again-To Allow
Elephant Trophy Imports, nat’l pub. RaDio ( Mar. 6, 2018), https://www.
quietly-decides-again-to-allow-elephant-trophy-imports. See generally
Hunting Overseas, u.S. fiSh & wilDlife SeRv. int’l, https://ww w.fws.gov/
internat ional/permits /by-activity/sport-hu nted-trophies.ht ml (stating that
well-regulate d hunting in addition t o a properly managed progr am can benet
the conser vation of species but does not provide c urrent statist ics or other
data to show how cur rent rules and reg ulations are impact ing species and
whether there h as been increased con servation due to cur rent trophy hunting
imp orts) .
98 Dwyer, supra note 97.
99 Id.; see also Donald J. Trump (@realDon aldTrump), twitteR (Nov. 19,
2017), https://twitter.com/r ealDonaldTrump/stat us/932397369655808001?ref_
src=twsrc% 5Etfw (showing how President Trump said the decision to lift the
ban on impor ting sport-hunted t rophies was a “horror show ” and that it would
be hard for him to ch ange his mind).
100 16 U.S.C. § 1533(d) (2012); Rachel Nuwer, U.S. Lifts Ban on Some
Elephant and Lion Trophie s, n.y. timeS (Mar. 7, 2018), https://www.nyti mes.
com/2018/03/07/science/trump -elephant-trophy-hunting.html (expressing
disagreem ent with the Service’s decision, not ing that nothing has ch anged
since the Obama a dministrat ion’s ban, as elephant p opulations have not made
a comeback, and t here are still major issue s such as poaching and cor ruption).
But see Dickma n, supra note 84 (arguing that t rophy hunting may be the bes t
way to conserve s pecies in certai n circumstances).
101 § 1531(c).
102 § 1539(a)(1)(A)–(B).
103 The Serv ice references a document tha t described two previous ca se studies
about trophy hunti ng and conservation. Th ese case studies discus s how popula-
tions increa sed but did not explain how trophy huntin g directly helped conser ve
species, nor did it prove that t rophy hunting was the cause of the pop ulation
increase. See Inte rnational Union for Conser vation, supra note 80, at 8–10.
104 See Sheehan, s upra note 1.
105 See Inter national Union for Conser vation, supra note 80, at 8–10; Import
of Hunted Lions, u.S. fiSh & wilDlife SeRv., https://www.fws.gov/inter na-
tional/per mits/by-activit y/sport-hunted-trop hies-lions.html (demonst rating
the Service’s relianc e on the document).
106 § 1533(d).
107 The Secre tary must give prior ity to endangered and t hreatened species
that are likely t o benet from recovery pla ns. If it created a recovery pl an,
the Secreta ry would have to provide a descr iption of site-specic man age-
ment actions and m easurable criter ia which would result in the spe cies being
removed from the en dangered or threat ened species list. See § 1533(f)(1).
108 5 U.S.C. § 706.
109 Id.; see also 16 U.S.C. § 1539(a)(1)(A)–(B) (stating that the Ser vice may only
issue permit s for scientic research, sur vival, or improvement of propagation).
110 See gener ally Holly Doremus, Listing Dec isions Under the Endange red
Species Act: Wh y Better Science Isn’t Always Better Pol icy, 75 waSh. u. l.
Rev. Q. 1029, 1035–36 (1997) (explaining that the best avai lable science is
often uncer tain).
111 5 U.S.C. § 706(2)(A); 16 U.S.C. § 1533(d).
112 5 U.S.C. § 706(2)(A); see Safari Club Int’l v. Zinke, 878 F.3d 316, 325
(D.C. Cir. 2017) (stating that when the cour t applies the arbitra ry and capri-
cious standa rd, it must consider whether t he agency has “relied on fact ors
that Congres s has not intended it to conside r” and gave an explanation for its
decision that oppo ses evidence before the agency).
113 Motor Vehicle Mfrs. A ss’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 42 (1983).
114 Id. at 43.
117 See Intern ational Union for Conserva tion, supra note 80, at 8–10.
118 Ethyl Corp. v. U.S. Envtl. P rot. Agency, 541 F.2d 1, 35–36 (D.C. Cir.
1976) (quoting Greater Bos ton Television Corp. v. Fed. Commc’n Comm’n,
444 F.2d 841, 850 (D.C. Cir. 1970)).
119 16 U.S.C. § 1539(a)(1)(A)–(B) (2012).
120 Safari Club I nt’l v. Zinke, 878 F.3d 316, 326 (D.C. Cir. 2017).
121 Hunting Overseas, u.S. fiSh & wilDlif e SeRv. int’l aff. (last visited
Feb. 24, 2019), https://www.fws.gov/internatio nal/permits/ by-activity/sport-
123 The following docum ent provides two case studies as example s. The rst
case study discu sses population increas es but does not discuss how many animals
were killed, how much money gener ated from trophy hunting was us ed directly
for conservation ef forts, and how trophy hunting caus ed increases in population .
The second case stud y follows suit and provides even less detail. See International
Union for Conservat ion, supra note 80, at 2 (discussing how trophy hunting may
assist in fur thering conserv ation objectives by creating econom ic incentives).
124 See generally I nternational Union for Co nservation, supra note 80.
125 16 U.S.C. § 1533(b) (2012); see Building Indus. Ass’n v. Norton, 247 F.3d
1241, 1246 (2001) (explaining that t he Service must utili ze the best scientic
data available, not t he best scientic data p ossible); Doremus, supra note 110,
126 Doremus, supra note 110, at 1034; see also Ya-Wei Li, supra note 57, at
6-7 (describing how unde r the ESA, basic informat ion such as the number and
types of spe cies covered by section 4(d) rules co ntinue to be inscru table to
ESA practitione rs).
127 Doremus, supra note 110, at 1036 (explaining t hat a strict science-b ased
directive ha s led agencies to apply closed, tech nocratic decision-ma king
processes th at are common in the scient ic community).
128 5 U.S.C. § 553(b) (explaining the exception when p ersons subject theret o
are named and p ersonally served or ot herwise have notice per th e law).
129 § 553(b)(1).
130 § 553(b)(2)–(3).
131 Chocolate M frs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir. 1985)
(explaining that by al lowing interested pa rties to educate the a gency, the
agency is bette r informed duri ng its decision-making p rocess).
34 Sustainable Development Law & Policy
132 § 553(c).
135 Dellinger, supra note 6, at 468 (explaining how the public t rust doctri ne
could be used, by t hird parties, as a m echanism to ensure pl aintiffs have
standing whe n challenging the govern ment’s ability to issue trophy hu nting
per mi ts).
136 16 U.S.C. § 1531(a)(4) (pledging to pr otect endangered spe cies within
practicable mea ns).
137 When a rul e was proposed in 2015 to increase pr otections for Africa n
elephants, the pu blic submitted 6345 comment s in response to the propo sed
rule. See gene rally Endangered and Th reatened Wildlife and Pla nts; Revision
of the Section 4(d) Rule for the A frican Elephant (Loxodo nta africana), 80
Fed. Reg. 45,154 (July 29, 2015) (to be codied at 50 C.F.R. § 17).
138 See § 1531(a)(3) (recogniz ing the inherent value i n diverse species of
plants and ani mals).
139 5 U.S.C. § 553(e).
140 Dellinger, supra note 6, at 458. (utilizing the pu blic trust doctr ine to
establish sta nding in third-p arties).
141 Sierra Club v. Morto n, 405 U.S. 727, 732 (1972).
142 Id. at 735.
143 16 U.S.C. § 1533(b)(1)(A); Building Indus. Ass’n v. Norton, 247 F.3d 1241,
1246 (2001); see also Franks v. Salazar, 816 F. Supp. 2d 49, 56 (2011) (explain-
ing that the plai ntiff has the burden t o demonstrate that t he Service’s action is
arbitrar y and capricious).
144 It is cr ucial that the Service follows t he guidelines unde r the APA and
provide the public an o pportunity t o participate in the r ulemaking proce ss as
the public general ly has an interest in t he future of endange red and threatened
species. See gene rally Chocolate Mfrs. As s’n v. Block, 755 F.2d 1098, 1103
(4th Cir. 1985).Additionally, as the failu re to use notice-and-c omment rule-
making inva lidated the Obama ad ministration’s ban on spor t-hunted trophies
in Safari Club International v. Zinke, it is crucial t hat procedure outli ned in
the APA is adequately followed . See Safari Club Int’l v. Zinke, 878 F.3d 316,
326 (D.C. Cir. 2017).
145 Safari Clu b Int’l, 878 F.3d at 326.
146 The Lion’s Share, supra n ote 88.
147 Id. at 5–6.
148 Id. at 6 (explaini ng that ideal trophy hunt ing conservation prog rams can-
not exist due to fact ors such as political clima tes, corruption , lack of monitor-
ing, ignorin g science, not placing age limit s on hunted species, and pe rmitting
hunting in u nstable populations ar e all factors that cont ribute to the fact that).
149 Safari Cl ub Int’l, 878 F.3d at 324, 327.
151 See Id. at 328; 50 C.F.R. § 17.40(e)(6)(i)(B) (2019).
152 16 U.S.C. § 1533(d) (2012).
153 See generally Safar i Club Int’l, 878 F.3d at 328 (holding that the Ser vice’s
negative enhanc ement ndings were not improper even thou gh they rested on the
absence of evidence that t rophy hunting enhances th e survival of the species).
154 Id. at 334–35 (concluding tha t the Service’s failure to mean ingfully
engage the public is not a h armless error).
155 See § 1539(a)(1)(A)-(B) (describing the two-s tep analysis for the issua nce
of permits u nder the ESA).
156 See About the U.S. Fi sh and Wildlife Service, supra note 8 .
157 § 1531(c).
158 § 1533(d).
160 See § 1539(a)(1)(A)-(B).
1 Edward Yeranian, Water Cr isis Looms as Syria Mil itary Conict Winds
Down, voice of am., Aug. 28, 2018, https://reliefweb.int/report/syrian-arab-
republic/water-c risis-looms-syr ia-military-co nict-winds-down (noti ng that
the lack of agricu lture between 200 6 and 2010 created an “army of idle young
men,” which may have contr ibuted to the conict i n 2011).
2 Gender, Climate Ch ange, and Health, woRlD health oRG., https://www.
who.int/globalchange/GenderClimate ChangeHealthnal.pd f.
3 Francesca De Châ tel, The Role of Drought and Clima te Change in the
Syrian Upris ing: Untangling the Triggers of the Revolut ion, Vol. 50, miDDle
e. StuDieS, Jan. 27, 2014.
5 Peter H. Gleick, Water, Drought , Climate Change, and Conic t in Syria,
pac. inSt., July 1, 2014, https://doi.org/10.1175/WCAS-D-13-00059.1.
6 See United Nations Frame work Convention on Climate Cha nge, May 9,
1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107 [hereinafter U NFCCC];
Kyoto Protocol to the Unite d Nations Framework Convention on Cli mate
Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).
7 UNFCCC, supra note 6.
8 See Kyoto Protocol, supra note 6.
9 Parties and Ob servers, uniteD nationS fRam ewoRk conven tion on cli-
mate chanGe htt ps://unfccc.int/par ties-observers ( last visited Apr. 23, 2019).
10 Kyoto Protocol, supra note 6.
13 Paris Agre ement to the United Nations Fra mework Convention on Cli-
mate Change, De c. 12, 2015, T.I.A.S. No. 16-1104, art 6.1, 7 [hereina fter Paris
14 Id. at art 6; Roma ny Webb and Jessica Wentz, Human Rights and Ar ticle
6 of the Paris Agree ment: Ensuring Adequate P rotection of Human Rights
in the SDM and ITMO Fra meworks, columbia l. Sch. Sabi n centeR foR
climate chanGe (2018) http://columbiaclima telaw.com/les/2018/05/Webb-
15 Paris Agre ement, supra note 13, at art. 7.
16 Kyoto Protocol, supra note 6, a rt. 2.
17 Kyoto Protocol, supra note 6, a rt. 2(i); Margaret Suter, Runn ing Out
of Water: Conict and Water Sca rcity in Yemen and Syria, atl , council
(Sep. 12, 2017), https://www.atlanticcouncil.org/blogs/menasource/
ing violent politica l turmoil and water sho rtages)
18 See Kyoto Protocol, supra note 6, ar t. 2(i).
19 Counting the C ost: Agriculture in Syr ia after six years of cris is, fooD
anD aGRic. oRG. of the uni teD nationS (Apr. 2017), http://www.fao.org/
20 Kyoto Protocol, supra note 11, art. 2(iv).
21 Syria, ReG’l ctR. foR Renewable en eRGy anD eneRGy efficie ncy, http ://
www.rcreee.org /content/syria (last vi sited Apr. 23, 2019) (noting that “[t]he
government ha s set a 4.3% target of primar y energy demand to come f rom
renewable energ y resources by 2030”).
22 Kyoto Protocol, supra note 6; Paris Ag reement, supra note 13, at ar t 7.
23 An Introducti on to the Kyoto Protocol Complianc e Mechanism, uniteD
nationS fRamewoRk con vention on clim ate chanGe, htt ps://unfccc.int/pro-
(last visited Ap r. 23, 2019).
24 Nat’l Commc’n Submissions from Non-Annex I Parties, uniteD
nationS fRamewoRk con vention on clim ate chanGe, ht tp s://
reporting-and-review-under-the- convention/national-communicat ions-
and-biennial-update-rep orts-non-annex-i-parties/nat ional-communication-
submissions-from-non-annex-i-parties (last visited Apr. 23, 2019).
25 Jane Cohen, The re is No Time Left: Climate Change, En vtl. Threats,
and Human Rights i n Turkana, County Kenya, hu man RiGhtS watch
(Oct. 15, 2015) https://www.hrw.org/repor t/2015/10/15/there-no-ti me-left/
26 See generally Water Qu ality Management – Syr ia, meDiteRRanea n
envtl. technical a SSiStance pRoGRam, http://siteresou rces.worldbank.org/
EXTMETAP/Resou rces/WQM-SyriaP.pdf (last v isited Apr. 23, 2019).
27 Gleick, supra note 5.
28 See generally Ido Bar & G erald Stang, Water and Insec urity in the Levant,
euRopean union inSt. foR Sec. StuDieS (Apr. 2016), https://www.iss.europa.
enDnoteS: how SyRia’S failuRe to upholD the kyoto pRotocol anD paRiS aGReement exaceRbateD the
effectS of climate chanGe in the levant
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