New Wine in Old Bottles: Distorting the Antiquities Act to Aggrandize Executive Power

Date01 April 2018
The ceaseless aggrandizement of executive power at
the expense of the U.S. Congress and the judiciary
takes many forms and knows no boundaries, not
even the boundaries of public lands. President Donald
Trump promised to undo much of the regulatory handi-
work of his White House predecessors. On the heels of
his inauguration, President Trump tasked Secretary of the
Interior Ryan Zinke to review national monument declara-
tions of previous presidents issued under the Antiquities
Act of 1906,1 and to recommend monument modications
or revocations. President Trump’s April 26, 2017, Executive
Order2 directed the Secretary to review national monument
designations made since January 1, 1996, if they exceeded
100,000 acres or “where the Secretary determines that the
designation or expansion was made without adequate pub-
lic outreach and coordination with relevant stakeholders.”
is Executive Order also instructed Secretary Zinke to
determine whether these designations conformed to the
objectives of the Antiquities Act.3
In a report4 released December 5, 2017, Secretary Zinke
recommended that President Trump shrink the bound-
aries of four national monuments without authorization
from Congress: Utah’s Bea rs Ears and Grand Staircase-
Escalante, Nevada’s Gold Butte, a nd Oregon’s Cascade-
Siskiyou. Additionally, Secretary Zinke has also apparently
recommended modications to 10 targeted monuments to
authorize activities currently restricted within their bound-
2. Exec. Order No. 13792, 82 Fed. Reg. 20429 (May 1, 2017), https:// s/2017/05/01/2017-08908/re view-of-
3. Id.
4. See Memorandum From Secretary Ryan Zinke, U.S. Department of the In-
terior, to President Donald Trump (Aug. 24, 2017) (Final Report Summa-
rizing Findings of the Review of Designations Under the Antiquities Act), /les/uploads/revise d_nal_report.pdf.
See also Juliet Eilperin, 
, W. P, Sept. 17, 2017, at A2.
aries, including grazing, logging, coal mining, and com-
mercial shing:
ese include “active timber management” in Maine’s
Katahdin Woods and Waters; a broader set of activities
in New Mexico’s Organ Mountains-Desert Peaks and
Rio Grande del Norte; and commercial shing in the two
Pacic Ocean marine monuments, as well as in one o the
New England coast, Northea st Canyons and Seamounts.5
On December 4, 2017, President Trump signed a proc-
lamation6 purporting to “modify” southern Utah’s Bea rs
Ears National Monument established by President Barack
Obama in the prior year,7 by designating two dierent,
smaller units that slashed the territory included in the
monument by 85%: Indian Creek and the Shash Jáa. ey
consist of a combined 201,397 acres. Bears Ears National
Monument as originally designated in 2016 encompassed
1.35 million acres.
President Trump signed a companion proclamation8 on
the same date, purporting to “modify” another vast and
beloved southern Utah monument, the Grand Staircase-
Escalante National Monument established by President
Bill Clinton in 1996.9 As with the Bears Ears procla-
mation, President Trump unilaterally and signicantly
slashed the Grand Staircase-Escalante monument’s pro-
5. Eilperin, supra note 4.
6. Proclamation No. 9681 of Dec. 4, 2017, Modifying the Bears Ears Na-
tional Monument, 82 Fed. Reg. 58081 (Dec. 8, 2017), https://www.
7. Proclamation No. 9558 of Dec. 28, 2016, Establishment of the Bears Ears
National Monument, 82 Fed. Reg. 1139 (Jan. 5, 2017), https://www.blm.
8. Proclamation No. 9682 of Dec. 4, 2017, Modifying the Grand Staircase-
Escalante National Monument, 82 Fed. Reg. 58089 (Dec. 8, 2017), https://
9. Proclamation No. 6920 of Sept. 18, 1996, Establishment of the Grand
Staircase-Escalante National Monument, 61 Fed. Reg. 50223 Sept. 24,
New Wine in Old Bottles:
Distorting the Antiquities Act to
Aggrandize Executive Power
by Bruce Fein and W. Bruce DelValle
Bruce Fein is a constitutional scholar and founding partner of Fein & DelValle, PLLC, a Washington, D.C., law rm.
W. Bruce DelValle is a litigator and founding partner of Fein & DelValle, PLLC.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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