MONUMENTAL DECISIONS: ONE-WAY LEVERS TOWARDS PRESERVATION IN THE ANTIQUITIES ACT AND OUTER CONTINENTAL SHELF LANDS ACT.

• Author: Hein, Jayni Foley

1. INTRODUCTION 126 II. OF MONUMENTS AND MEN: PAST DESIGNATIONS AND PRESENT CONTROVERSY 132 A. The Outer Continental Shelf and OCSLA Section 12(a) Withdrawals 132 B. National Monument Designations Pursuant to the Antiquities Act 137 III. THE CONSTITUTIONAL AND STATUTORY FRAMEWORK 141 A. The Property Clause: Congress as Caretaker of Public Lands 141 B. OCSLA Section 12(a): Plain Text, Legislative History, and Contemporaneous Statutes 143 C. The Antiquities Act: Plain Text, Legislative History, and Contemporaneous Statutes 146 IV. THE PUBLIC TRUST DOCTRINE: PROTECTING PUBLIC LANDS THROUGH DEMOCRATIC DECISION MAKING 148 A. The Public Trust Doctrine in Roman and English Common Law 150 B. The Public Trust Doctrine in the United States 151 C. The Public Trust Doctrine as a Theory of Public Land Management Best Effectuated by Legislatures 153 V. THE PUBLIC TRUST DOCTRINE AS A CANON OF STATUTORY INTERPRETATION FOR PUBLIC LAND STATUTES 157 VI. THE WISDOM OF ONE-WAY EXECUTIVE BRANCH LEVERS IN THE ANTIQUITIES ACT AND OCSLA SECTION 12(A) 161 VII. CONCLUSION 165 I. INTRODUCTION

   The Antiquities Act of 1906 (1) is one of the most important conservation tools available to Presidents of the United States. Frequently invoked to preserve cultural, historical, scientifically valuable, and scenic areas on federal lands, sixteen presidents have designated 157 national monuments under Antiquities Act authority, totaling more than 800 million acres. (2) While President Bill Clinton was known for his prodigious use of Antiquities Act authority, President Barack Obama surpassed Clinton and well-known conservationist President Theodore Roosevelt by protecting more than 550 million acres of federal lands and waters pursuant to Antiquities Act authority. (3) President Obama also availed himself of a less-utilized federal statutory provision, section 12(a) of the Outer Continental Shelf Lands Act (4) (OCSLA), to withdraw several large areas of the Outer Continental Shelf from future mineral leasing, indefinitely. (5)

   While President Obama's preservation agenda was largely applauded by environmentalists, it was criticized by some opponents as a "federal land grab." (6) Framing these actions as a "federal land grab" misstates the issue, as the land in question was owned by the federal government when it was designated as a national monument or withdrawn from mineral leasing. (7) From a law and policy perspective, the more interesting and pressing questions concern not the ownership of the land but the permissible bounds of executive power over this federal land. The durability of presidential preservation decisions--specifically, actions withdrawing offshore areas from future mineral leasing and designating certain federal lands as national monuments--has received limited attention in the courts and in academic literature, until now. President Obama's multiple, large-scale designations, which in some cases attracted robust state and local opposition, (8) and President Trump's unprecedented actions purporting to undo these designations, has drawn increased attention to this executive authority.

   On April 26, 2017, President Trump signed an executive order directing the Secretary of the Department of the Interior, Ryan Zinke, to review national monuments designated by previous presidents under the Antiquities Act, and assess whether to rescind or reduce the boundaries of some of these national monuments. (9) In December 2017, President Trump issued two proclamations, downsizing Bears Ears National Monument by 85% and Grand Staircase-Escalante National Monument by nearly 50%. (10) Native American tribes and conservation groups sued, challenging these actions under the Antiquities Act, the U.S. Constitution, and the Administrative Procedure Act (11) (APA). (12) On April 28, 2017, President Trump issued a separate executive order, rescinding President Obama's offshore leasing withdrawals made pursuant to OCSLA section 12(a)." Environmental groups sued, challenging the legality of the offshore leasing executive order. (14)

   The key question presented by both the OCSLA and Antiquities Act controversies is not whether these federal lands can ever be converted to other uses; but whether it would take an act of Congress to rescind or diminish these protective designations, as opposed to a mere flick of the President's pen. This question, with respect to both statutes, is a matter of first impression. No court has ever decided whether a president can rescind or diminish an existing national monument designation or reverse an offshore leasing withdrawal that was established "for a time period without specific expiration." (15)

   This Article argues that both OCSLA section 12(a) and the Antiquities Act are structured such that protected offshore areas and national monuments endure across presidential administrations, and that Congress, alone, has the power to rescind or modify these designations. Existing scholarship cogently makes the case that based on its plain language and legislative history, the Antiquities Act grants a one-direction power to the President to designate national monuments, but not to rescind or diminish existing monuments. (16) This Article does not repeat the detailed and persuasive analysis contained in other articles, but it builds upon this scholarship and examines the plain text and legislative history of a similar provision, OCSLA section 12(a). Furthermore, this Article illuminates how the restraints imposed on the executive branch by both OCSLA and the Antiquities Act--in the form of one-way levers to protect special places, but not to rescind those protections--are not novel. Rather, common law public trust doctrine jurisprudence developed with a distinction between the role of legislatures and non-legislative actors with respect to public land protections. As such, the longstanding public trust doctrine should serve as a background principle to frame the interpretation and understanding of OCSLA section 12(a) and the Antiquities Act.

   First, the constitutional and statutory framework for OCSLA section 12(a) and the Antiquities Act strongly support the interpretation that Congress granted the President a one-way power to preserve public lands, but not to remove those protections. A limited role for the executive branch in public lands decision making is embedded in the Property Clause of the U.S. Constitution, which vests Congress with plenary authority over public lands. (17) While Congress explicitly delegated to the President the power to designate national monuments and to withdraw areas from offshore leasing in these two statutes, it did not explicitly delegate the power to lift these protections once in place, instead reserving the authority to undo such protections for itself. The plain text and legislative history of the Antiquities Act, as well as attorney general opinions interpreting the provision, support the interpretation that it confers a one-way power to the President. (18) This structure maintains the traditional separation of powers between Congress and the President with respect to public lands, vesting Congress, the most democratic of the three branches, with decision-making power over our widely shared public lands.

   Second, interpreting OCSLA section 12(a) and the Antiquities Act to confer a one-direction power to the President is consistent with the enduring national narrative that public lands should be managed and regulated according to principles of democratic decision making, especially where important public trust interests are at stake. In several U.S. states, a long line of common law public trust jurisprudence elucidates the principle that government actions diminishing, impairing, or alienating public trust lands, such as the seabed, tidelands, and public parks, (19) should be made through a democratic, deliberative process, such as legislative action, or at least through explicitly delegated authority. (20) This is especially so when an action would open public trust lands to exploitation or development by private parties. The theory underlying this principle is that legislatures answer to a broader constituency than municipal actors and undertake a more deliberative, open process that guards against rash, ill-informed, or corrupt decisions with respect to public lands and resources. (21) OCSLA section 12(a) and the Antiquities Act, in effect, place an analogous procedural restraint on the President by reserving to Congress the authority to undo protected land status.

   Beyond providing an illuminating analogy, the public trust doctrine should serve as a background principle or canon of statutory construction for public land statutes. As a canon of statutory interpretation, the public trust doctrine would function as a "clear statement" rule, requiring Congress to be explicit when granting a power to act contrary to public trust principles. Thus, in the absence of a "clear statement" by Congress providing a multi-directional power to the President to both designate and remove public land protections, courts should presume that Congress retained this power for itself.

   This Article also serves, in part, to refute the arguments made by John Yoo and Todd Gaziano that the conventional relationship between the executive branch and Congress supports the argument that President Trump "has the right to reverse national monuments created by previous presidents without an act of Congress." (22) In their view, presidents are free to volley national monument status back and forth, according to their opinion as to what qualifies as an object of "historic or scientific interest." (23) But this argument overstates the amount of power delegated to the President in the Antiquities Act. Further, their arguments ignore relevant legislative history and the overarching purpose behind these two statutory provisions: to protect certain lands and resources for the benefit of current and future generations.

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