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

• Date: 01 April 2018

48 ELR 10300 ENVIRONMENTAL LAW REPORTER 4-2018

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-

1. 54 U.S.C. §§320301-320303.

2. Exec. Order No. 13792, 82 Fed. Reg. 20429 (May 1, 2017), https://

www.federalregister.gov/document s/2017/05/01/2017-08908/re view-of-

designations-under-the-antiquities-act.

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),

https://www.doi.gov/sites /doi.gov/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.

whitehouse.gov/presidential-actions/presidential-proclamation-modifying-

bears-ears-national-monument/.

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.

gov/sites/blm.gov/les/documents/les/2016bearsears.prc_.rel_.pdf.

8. Proclamation No. 9682 of Dec. 4, 2017, Modifying the Grand Staircase-

Escalante National Monument, 82 Fed. Reg. 58089 (Dec. 8, 2017), https://

www.whitehouse.gov/presidential-actions/presidential-proclamation-modi-

fying-grand-staircase-escalante-national-monument/.

9. Proclamation No. 6920 of Sept. 18, 1996, Establishment of the Grand

Staircase-Escalante National Monument, 61 Fed. Reg. 50223 Sept. 24,

1996, https://www.gpo.gov/fdsys/pkg/FR-1996-09-24/pdf/96-24716.pdf.

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®, http://www.eli.org, 1-800-433-5120.