No Take Backs: Presidential Authority and Public Land Withdr awals

Author:Christian Termyn
Position:Christian Termyn is an Associate in the San Francisco, California office of Perkins Coie, LLP. He focuses his practice on environment, energy, and natural resources law.
Pages:4-13
 
CONTENT
4Sustainable Development Law & Policy
no take backS:
pReSiDential authoRity anD public lanD withDRawalS
By Christian Termyn*
I. IntroductIon
In the twilight of his presidency, Barack Obama made sev-
eral announcements withdrawing federal land from devel-
opment. These executive actions were protective measures
taken under longstanding authorities of the Antiquities Act of
19061 and the Outer Continental Shelf Lands Act2 (OCSLA),
which delegate a portion of Congress’ primary Constitutional
authority over federal lands to the executive branch. Specically,
the statutes authorize the President to unilaterally withdraw cer-
tain land from development, which can be an extremely contro-
versial measure depending on the location and size of the parcel
to be protected, the productive uses restricted, and the heated
politics of federal land management more generally. President
Obama’s last-minute land withdrawals were no exception.
A lingering question is whether the President, by the same
authority, may revoke these protective measures and effectively
reopen withdrawn lands to disposition. This question implicates
the Constitution, statutes authorizing executive land withdraw-
als, and other sources of positive law, but is also susceptible to
strong intuitions and normative judgments about the role of the
Executive in land use policy. The Antiquities Act and OCSLA
are silent as to revocability, even as similar statutes authorizing
the President to withdraw lands expressly provide for reversal
of those withdrawals. As no president until now has revoked a
prior land withdrawal under these statues, the courts have not
had the opportunity to weigh in.
President Trump converted these hypotheticals into reality.
In April 2017, he issued an executive order calling for a review
of national monument designations under the Antiquities Act,
signaling an intention to return lands protected under the Act to
the public domain.3 Two days later, a second order reversed the
Obama Administration’s ban on Arctic drilling pursuant to the
OCSLA.4 Environmental groups have challenged both orders
and, for the rst time, a federal court was presented with the
question whether the Executive may reverse a predecessor’s
land withdrawal.5
This paper concludes that the President currently lacks
authority to reverse a land withdrawal under the Antiquities
Act or OCSLA. It begins by reviewing executive withdrawal
authorities under the two statutes, as well as President Trump’s
recent executive orders.6 Part III then discusses the nature of
executive action in the public lands context, taking care to dis-
tinguish it from the President’s free exercise of Article II pow-
ers, including reversal of a predecessor’s executive actions.7
The President has no inherent authority in the land use context,
and reversing a prior land withdrawal constitutes a unique pol-
icy decision requiring delegation of authority from Congress.8
Part IV returns to the statutes themselves, concluding that the
Antiquities Act and OCSLA cannot be read to delegate such
authority.9 Congress has repudiated implied executive authority
in the public lands context and has demonstrated that it knows
how to delegate revocation authority when necessary to fulll
its policy objectives.10 Part V discusses the potential implica-
tions of executive reversal of land withdrawals on use of the
Antiquities Act and OCSLA as tools to address environmental
policy objectives.11 Part VI then briey concludes.12
II. ExEcutIvE WIthdraWal authorIty
undEr thE antIquItIEs and outEr
contInEntal shElf lands acts
The Constitution vests Congress with broad powers over
the public lands.13 One of the major legal mechanisms govern-
ing the status of public lands is a land “withdrawal.” Histori-
cally, withdrawal of federal land refers to the process by which
the public domain is withdrawn or reserved for certain specic
purposes and thereby segregated from the operation of various
other public land laws authorizing the use or disposition of the
lands.14 Withdrawals of public lands were initiated beginning in
the earliest days of the Republic to establish military and Indian
reservations, lighthouses, townsites, and, eventually, railroads.15
Today, withdrawals are more commonly a protective measure
to preserve the status quo and prevent specic future uses in
designated areas.16
In general, withdrawals of public lands are accomplished
by one of three means: (1) express withdrawals of specied
lands for a particular purpose by act of Congress; (2) withdraw-
als by the Executive pursuant to statutory delegation, which can
either authorize withdrawal for a particular purpose while leav-
ing the selection and withdrawal of the qualifying lands to the
Executive, or generally authorize the Executive to withdraw for
public purposes; and (3) withdrawals by the Executive without
statutory authority, for instance, where impliedly authorized
by Congress’ longstanding acquiescence to an executive with-
drawal practice.17 A comprehensive 1969 study of withdrawals
and reservations of public domain lands marveled that “[o]ver
four hundred statutes, thousands of Executive orders, numerous
* Christian Termyn is an Associate in the San Francisco, California ofce of
Perkins Coie, LLP. He focuses his practice on environment, energy, and natural
resources law. Any opinions expressed in this article are those of the author and
should not be construed to be those of Perkins Coie LLP, its client, or any of its
or their respective afliates.
5
Spring 2019
administrative regulations and administrative and judicial adju-
dications” govern the withdrawal process.18
The evolution of federal public lands policy, and the com-
plex interrelationship between Congress and the Executive
in setting and carrying out that policy, is a rich history well
beyond the scope of this paper. However, two strands of the his-
tory are necessary as background. First, while the Antiquities
Act and OCSLA have been applied expansively to withdraw
land from development, executive withdrawal authority has
narrowed overall. Presidents have exercised broad implied
authority to withdraw lands throughout the nineteenth and
into the early twentieth century. More recently, Congress has
expressly repudiated any implied withdrawal authority and nar-
rowed express statutory authorities.19 This trend advises against
implying an executive authority to return withdrawn lands to
the public domain where a statute is silent.
The second historical note pertains to the shifting policy
of retention, management and disposition of public lands, and
an evolving conception of the public interest therein. Though
public lands legislation was historically concerned with provid-
ing for the disposal of the public domain, a growing recogni-
tion of the shortcomings of disposal policy led the government
to retain many tracts of land in federal ownership.20 The
Executive had historically withdrawn land for limited public
uses, such as military or Indian reservations.21 As conserva-
tion became a critical national concern in the late nineteenth
century, 22 the Executive was to play a key role, and for good
reason. Equipped with land withdrawal authority, the President
could act decisively to identify and protect certain parcels while
Congress remained free to undo or modify the action.23
The Antiquities Act and OCSLA are just two statutes in an
expansive body of law governing executive withdrawal author-
ity. Enacted fty years apart and for very different purposes,
they are not obvious partners for a legal analysis. They share
a structural similarity in granting the President a unilateral
authority to withdraw land from the public domain without
saying anything about a corresponding authority to reverse
the withdrawal. And under the Obama Administration, they
became primary tools to protect federal land and were wielded
with express reference to controversial environmental policy
objectives including climate change mitigation. These appar-
ent “one-way” authorities, applied to similar purposes, set the
Antiquities Act and OCSLA apart from other federal laws and
provide a unique lens into executive public lands authority.24
a. the antiQuitieS act of 1906
The Antiquities Act of 1906 is “one of the earliest statutes
vesting the Executive with discretion to make withdrawals.”25
Although the statute is only two sentences long, its impact on
federal lands cannot be overstated. Since its passage, seventeen
of twenty-one Presidents have used the Act to proclaim 158
national monuments, withdrawing hundreds of millions of acres
from the public domain.26 President Franklin D. Roosevelt used
his authority thirty-six times, more than any other President,
while President Obama withdrew the most acreage, over 550
million acres.27 Numerous withdrawals were accomplished by
lame duck Presidents, fueling the political re around desig-
nations despite the fact that use of the Act has been distinctly
bipartisan, with some of the most vigorous uses of the Act com-
ing from Republicans.28
The Act authorizes the President to “declare by public
proclamation historic landmarks, historic and prehistoric
structures, and other objects of historic or scientic interest .
. . to be national monuments.”29 As part of a national monu-
ment, the President may reserve parcels of land from the public
domain which “shall be conned to the smallest area compat-
ible with the proper care and management of the objects to
be protected.”30 Conspicuously missing from the statute is
any specication of procedure to create a national monument,
beyond that the President shall “proclaim” one.31 The Act
is also silent as to whether a President may abolish a monu-
ment established by a previous presidential proclamation. No
President has abolished a national monument, and no court has
addressed whether the President has the authority to do so.
Much criticism of the Act centers on whether the President
exceeds the statutory authority by proclaiming monuments of
certain substance and acreage. Its scope was challenged soon
after the Act’s passage, but the United States Supreme Court
gave a wide construction to the authority and has never over-
turned the designation of a monument.32 However, despite
longstanding precedent and Congressional acquiescence to
executive national monument practice, some scholars still argue
that certain monument proclamations are unlawful.33 These
arguments rely on a narrow reading of the original purpose of
the Act as solely designed to protect objects of antiquity, rather
than for impermissibly broad purposes such as “general con-
servation, recreation, scenic protection, or protection of living
organisms.”34 Critics also argue that the designation of large
monuments violates the Act’s open-ended acreage limitation.35
It is contended that the Act is an unconstitutionally broad del-
egation of Congress’ power under the Property Clause.36
The presidential proclamation creating a national monu-
ment under the Act is also rarely the last word as to that monu-
ment’s size and legal characteristics. Both Congress and the
President have modied monuments established by earlier
presidential proclamation—the Trump Administration is only
the latest example.37 Modications include reductions in scope
but also, commonly, Congress has enhanced protective designa-
tions for monuments. For instance, approximately half of our
national parks were rst designated as national monuments,
including the Grand Canyon, Grand Teton, Zion, and Olym-
pic.38 In at least ten instances, Congress has outright abolished
monuments created by the President.39 The executive branch,
however, has never outright abolished a monument.
The claim that many monument designations are “ille-
gal”—either too large, inconsistent with the purpose of the Act,
or otherwise—was the driving force behind calls for President
Trump to rescind previous monument designations. Trump’s
Executive Order 13792 directed the Secretary of the Interior
to review all monument designations or expansions under the
6Sustainable Development Law & Policy
Antiquities Act since 1996 where the monument covers more
than 100,000 acres, or “where the Secretary determines that the
designation or expansion was made without adequate public
outreach and coordination with relevant stakeholders.”40 The
Secretary’s charge was to consider each monument’s compat-
ibility with the Antiquities Act and the effects of the withdrawal
on various uses of that federal land and surrounding communi-
ties, among other considerations.41
In response, the Department of Interior initiated the rst-
ever formal public comment period on monument designations
under the Antiquities Act.42 After receiving nearly three million
public comments and issuing an interim report specic to the
Bears Ears National Monument, Secretary of the Interior Ryan
Zinke released a nal report recommending modications to
ten monuments.43 The Secretary’s conclusions are aptly sum-
marized as follows:
(1) Monuments designated under the Antiquities
Act were broadly and arbitrarily dened and in some
instances mirrored broader land management legisla-
tion that had stalled circumventing the legislative
process; (2) designating geographic landscape areas
as objects of historic or scientic interest raises man-
agement questions that may be more appropriately
regulated under FLPMA; (3) there is perception that
monument designation was intended to prevent access
and economic activity, including grazing, mining,
and timber production as opposed to protect specic
objects, and such designations may limit use of private
land; (4) concerns have been raised by state, tribal,
and local governments regarding lost jobs, access, and
inadequate public involvement; and (5) large designa-
tions under the Act may provide less protection than
applicable land-management authorities already in
place and therefore undermine the intent of the Act.44
President Trump wasted no time diminishing the Bears
Ears National Monument45 and the Grand Staircase-Escalante
National Monument,46 issuing separate proclamations concur-
rent with the report’s release. A broad coalition of federally
recognized tribes, environmental groups, and others immedi-
ately led suit alleging that President Trump’s proclamations
exceed presidential authority under the U.S. Constitution and
Antiquities Act and that only Congress may diminish a national
monument.47
President Trump’s proclamations reduced in size, rather
than outright abolished, the two monuments.48 The Admin-
istration, however, is continuing to review other monument
designations; its rhetoric around righting the perceived wrongs
of prior administrations’ land management decisions suggests
further reductions or reversals could be in store.49 This paper
is not meant to parse the legality of monuments under review
and does not wade into the nuanced legal arguments regard-
ing reductions to Bears Ears and Grand Staircase-Escalation.
Instead, it uses the hypothetical revocation of a national monu-
ment to explore the limits of presidential authority over federal
land management decisions.
As I will explain, the exercise of presidential land manage-
ment authority cannot rest on the perceived overreach of a pre-
decessor. A successor may have political and legal gripes with a
prior administration’s withdrawals, but there is no on/off switch
for these decisions, at least not under present authorities.
b. the outeR continental Shelf lanDS act
The Outer Continental Shelf Lands Act, passed on August
7, 1953, provides for federal jurisdiction over submerged lands
of the outer continental shelf (OCS), a huge area dened as all
submerged lands seaward of state coastal waters (three miles
offshore) under U.S. jurisdiction.50 OCSLA authorizes the Sec-
retary of the Interior to lease those lands for mineral develop-
ment.51 It also grants the President broad authority to withdraw
portions of the OCS from mineral leasing.52
The OCSLA withdrawal authority is limited to a particu-
lar federal action—mineral leasing—but affords the president
more discretion than the Antiquities Act.53 Section 12(a) allows
the President to bar the disposition of title or rights to land or
minerals under federal marine waters.54 The president is not
restricted to withdrawing “objects of historic or scientic inter-
est” or the “smallest [land parcel] compatible with the proper
care and management of the objects to be protected,” as she is
when proclaiming national monuments under the Antiquities
Act.55 Instead, the President can withdraw any sized area of
OCS for any public purpose, making Section 12(a) a powerful
tool for satisfying broader policy goals.56
Since 1953, six presidents have employed Section 12(a),
withdrawing as much as several hundred million acres at a
time.57 Like the Antiquities Act, OCSLA is silent as to undoing
actions taken under the withdrawal authority.58 Interestingly,
not all presidential withdrawals are permanent; some have been
expressly time limited despite no textual distinction in Sec-
tion 12(a) between a permanent or time-limited withdrawal.59
While no president before Trump had reversed a permanent
withdrawal under OCSLA, there have been several instances
of modication and revocation of time-limited withdrawals.60
Until the Trump Administration, neither permanent nor time-
limited Presidential withdrawals under OCSLA had been tested
by the courts.61
On April 28, 2017, President Trump issued an executive
order (EO) titled “Implementing an America-First Offshore
Energy Strategy.”62 Among other steps to enhance offshore
energy development, the order revoked or modied four of
President Obama’s executive actions withdrawing portions of
the outer continental shelf from mineral leasing.63 President
Obama had declared a policy of enhancing the resilience of the
northern Bering Sea region and withdrawn from leasing the
Norton Basin and St. Matthew-Hall Planning Areas.64 President
Trump revoked this order citing a need to “further streamline
existing regulatory authorities.”65
The Trump Order also effectively reversed three other
expansive withdrawals of the outer continental shelf that Presi-
7
Spring 2019
dent Obama accomplished through presidential memoranda.66
Rather than explicitly revoke the Obama memoranda, the
Trump Order merely replaced the language of the memoranda
with a withdrawal provision limited just to “those areas of the
Outer Continental Shelf designated as of July 14, 2008, as
Marine Sanctuaries under the Marine Protection, Research, and
Sanctuaries Act of 1972 . . . .”67 Environmental organizations
quickly led suit making similar arguments to the challengers
in the monument litigation: by exceeding Congress’ delegation
of authority to withdraw unleased lands under the OCSLA,
President Trump violated the plain text of the statute and the
constitutional doctrine of separation of powers.68 In March
2019, the District Court of Alaska found that the Congress had
not delegated to the president the authority to revoke a with-
drawal under the OCSLA.69 The court vacated the portions of
the Trump Order revoking President Obama’s prior withdraw-
als, holding that the withdrawals would remain “in full force
and effect unless and until revoked by Congress.”70
III. thE ExEcutIvE authorIty to
WIthdraW doEs not IncludE thE
PoWEr to rEvokE a WIthdraWal
As discussed above, President Trump has fully reversed
several withdrawals under the OCSLA and signaled a desire to
revoke monument designations under the Antiquities Act. His
supporters argue that these actions are indistinguishable from
modern Presidents’ frequent modication and revocation of
a predecessor’s executive actions. This section explores what
exactly the President accomplishes when she withdraws land
from the public domain, in order to distinguish executive land
withdrawals from executive actions taken pursuant to Article
II powers. Since the President has no inherent constitutional
authority to withdraw public lands, executive action under the
Antiquities Act or OCSLA is conned to the underlying statu-
tory authority. Reversing these actions is less consistent with
familiar executive branch functions, and more accurately under-
stood as a separate land action requiring express or implied
delegation from Congress.
a. DiStinGuiShinG the uSe of executive oRDeRS,
pReSiDential pRoclamationS, anD pReSiDential
memoRanDa in the public lanDS context
Presidents utilize various written instruments to direct the
Executive branch and implement policy. These include execu-
tive orders, proclamations, presidential memoranda, adminis-
trative directives, ndings, and others. Most of the time, the
President is free to choose the instrument she wishes to use to
carry out the executive function.71 While the Antiquities Act
provides that the President may “declare by public proclama-
tion” a national monument, neither that Act nor OCSLA speci-
es a particular form or procedure for the land withdrawal.72
To carry out land actions, Presidents have used executive
orders, presidential memoranda, and presidential proclama-
tions, sometimes interchangeably,73 though any difference
between these devices may be a matter of form rather than
substance. As the Constitution contains no reference to execu-
tive orders, judges and scholars have been left to develop a
legal and descriptive basis for the instruments from historical
practice.74 Though historical practice might suggest proclama-
tions are more geared towards private individuals, while orders
are more towards administration of government,75 more recent
accounts suggest that the instruments defy these distinctions
too often for any differences to be legally signicant.76 Federal
courts also tend to hold executive orders and proclamations to
be “equivalent for the purposes of carrying out the President’s
legal authority.”77
Just as the Constitution contains no denition of these
instruments, it does not clearly authorize their issuance. The
common thread, then, is that the execution and implementa-
tion of executive actions must stem from some express or
implied legal authority.78 The President, for instance, has issued
a Thanksgiving Proclamation annually since 1863.79 Though
nobody is challenging the legal basis for this Proclamation,
it likely emanates from Article II’s vesting clause.80 The bulk
of executive action taken by the White House, as opposed to
administrative agencies, emanates from Article II power. This
would include declaring that it is the “policy of the United
States to encourage energy exploration and production,”81 or
directing the Secretary of the Interior to perform a legal analy-
sis of monument designations.
These actions, while referencing our public lands, are not
acting upon them with legal force and effect. Arguments that
the Article II executive function includes some inherent author-
ity over public land have been rejected.82 Executive orders,
proclamations and memoranda to withdraw lands, then, must
derive from express or implied statutory authority. A “one-way”
delegation of authority—to withdraw land from, but not to
return it to the public domain—is consistent with the Constitu-
tional separation of powers.
b. a one-way executive authoRity to withDRaw
lanDS iS peRmiSSible
In practice, Presidents freely revoke, modify and supersede
their own orders or those issued by a predecessor. Executive
actions, by their very nature, lack stability in the face of evolv-
ing presidential priorities.83 It is a ritual of modern government
that incoming Presidents reinstate or rescind President Reagan’s
1984 executive order blocking foreign aid to organizations
providing abortions.84 Beginning with Gerald Ford’s adminis-
tration, presidents have actively issued, modied and revoked
orders to assert control over and inuence the agency rulemak-
ing process.85 That Thanksgiving Proclamation?86 It’s on thin
ice each November.
Several commentators have argued that the executive
power includes the authority to revoke executive actions taken
under the Antiquities Act and OCSLA authorities. John Yoo
and Todd Ganziano advocate a “general principle . . . that the
authority to execute a discretionary government power usu-
ally includes the power to revoke it—unless the original grant
expressly limits the power of revocation.”87 In their view, it is
8Sustainable Development Law & Policy
rooted in the Constitution that “a branch of government can
reverse its earlier actions using the same process originally
used,”88 and that “[n]o president can bind future presidents in
the use of their constitutional authorities.”89 This leads them
to suggest that “[i]t would be quite an anomaly to identify an
executive directive or presidential proclamation that a subse-
quent president could not revoke.”90
These principles might operate on the Article II executive
function, but they cannot extend to executive land withdrawal
authority, which has no roots in the Constitution. A Ninth Cir-
cuit case challenges the broad claim that a discretionary power
to act includes a power to revoke.91 The U.S. Attorney General
had moved to denaturalize several recently naturalized U.S.
citizens, arguing that the power to denaturalize is “inherent”
to the power to naturalize, which the Attorney General derives
from statute.92 The court examined the statute, silent as to the
matter of revocation of citizenship, and made a compelling
analogy to the power of U.S District Courts to vacate their
own judgments.93 This seemingly “traditional inherent power”
of federal courts to vacate their own judgments was nonethe-
less conrmed by Congress with an express rule.94 The Ninth
Circuit reasons that “[i]f [this power] needs conrmation by an
express rule approved by Congress, it is too much to infer an
analogous power in the Attorney General, for so weighty a mat-
ter as revocation of American citizenship, from silence.”95
Where authority to act in the rst place requires an express
rule, as in executive action impacting public lands, a reviewing
court should look for clear intent regarding the matter of revo-
cation. The concept that what “one can do, one can undo,” may
be an intuitive one, but as the Ninth Circuit suggests, it is easily
rebutted and should not control where the underlying authority
is delegated to begin with:
The formula the government urges, that what one can
do, one can undo, is sometimes true, sometimes not.
A person can give a gift, but cannot take it back. A
minister, priest, or rabbi can marry people, but can-
not grant divorces and annulments for civil purposes.
A jury can acquit, but cannot revoke its acquittal and
convict. Whether the Attorney General can undo what
she has the power to do, naturalize citizens, depends on
whether Congress said she could.96
We should be careful not to conate Constitutional with
statutorily delegated authority in the public lands context, as
Yoo and Ganziano do.97 A court examining President Trump’s
reversal of land withdrawals, then, should not be persuaded
by instances where the President is permitted to undo certain
Constitutional powers without Congressional authority.98 Our
approach to unilateral revocation under the President’s appoint-
ment or treaty powers do not support some inherent executive
authority to undo actions vested in another branch, such as
Congress’ plenary authority over public lands. Whether the
President may reverse a predecessor’s land withdrawal, there-
fore, “depends on whether Congress said she could.”99
c. Revocation of a lanD withDRawal iS a SepaRate
leGiSlative act
The sense that what “one can do, one can undo” may
be a powerful one, but has no place in the public lands con-
text, where the President is conned to specic delegations
of authority. Executive action to undo a predecessor’s land
withdrawal requires express or implied authority. This section
reaches a similar conclusion from a different angle, arguing
that the act of returning withdrawn land to the public domain
is not simply the inverse of withdrawing land in the rst place.
Rather, it has the characteristics of a separate legislative act,
which requires a delegation of authority and an intelligible prin-
ciple to guide the exercise of that authority.
Yoo and Ganziano argue that when Congress grants discre-
tionary authority to issue regulations, Congress also confers the
authority to substantially amend or repeal them.100 They also
suggest that reading the Antiquities Act to prevent Presidents
from reversing earlier monument designations would read the
Act to “micromanage” the discretion granted, “rais[ing] serious
constitutional questions.”101 It would be laughable, on any read-
ing, to suggest that the Antiquities Act micromanages Executive
land withdrawal authority; indeed, the main criticism of the
Act is that the authority delegated is too expansive. A power to
revoke previous designations implicates entirely separate legis-
lative goals, distinct policy questions, and would conict with
existing statutes.
A court should approach revocation of a withdrawal under
the Antiquities Act or OCSLA as a decision with legislative
character separate from the original withdrawal. In both stat-
utes, Congress includes language to guide the President in
her decision to remove land from the public domain, a deci-
sion with profound economic and environmental impacts. The
inverse, returning land to the public domain, is not contem-
plated by the statutes and would involve a host of separate pol-
icy decisions not addressed by the statutory language guiding
the original withdrawal.
President Trump directed the Secretary of Interior to
review monument designations since 1996 with an eye for
returning these lands to the public domain.102 In the last twenty
years, however, these lands have been integrated into a broader
system of land management. Disentangling a national monu-
ment from this system not only removes legal protections of
that land, but also erodes legal and economic structures that
have grown up in surrounding communities by virtue of a mon-
ument’s unique status. It would also negate funds appropriated
by Congress over the years to improve and maintain the land
for public use.103 In short, revocation entails an entirely differ-
ent cost-benet analysis than the decision to withdraw land for
the monument in the rst place. This type of balancing is at the
heart of Congress’ legislative authority over public lands, and it
can only delegate this authority with proper guidance.
The decision to revoke a monument designation would
also conict with several statutes articulating broad policies
for management of monuments and other protected areas.
9
Spring 2019
Amendments to the National Park Organic Act of 1916104 make
clear that national monuments are part of the National Park
System,105 and are fully covered by the general regulations
protecting that System.106 The various units of this System are
a “cumulative expres[sion] of a single national heritage.”107
Furthermore:
“[P]rotection, management, and administration of the
System units shall be conducted in light of the high
public value and integrity of the System and shall not be
exercised in derogation of the values and purposes for
which the System units have been established, except
as directly and specically provided by Congress.”108
With the National Park Organic Act and subsequent
amendments, Congress has imbued national monuments with
purpose beyond the policy considerations guiding the Execu-
tive in withdrawing land under the Antiquities Act. Revoking a
monument, and derogating these values, is a legislative act for
Congress to take itself or to delegate with appropriating guiding
principles.
Reading either the Antiquities Act or OCSLA to grant the
executive authority to reverse previous withdrawals would also
raise constitutional concerns under Nondelegation doctrine. The
Supreme Court’s Nondelegation doctrine prevents Congress
from delegating its legislative authority to the executive branch
without also providing an “intelligible principle” to guide its
application.109 The doctrine is rooted in separation of powers
principles and intended to ensure Congress is making core pol-
icy choices as well as to facilitate judicial review of executive
actions taken under delegated authority.110
Applied to the Antiquities Act and OCSLA, it is clear that
the policies guiding land withdrawal would fail to provide
adequate guidance for the decision to return the same land to
the public domain. For instance, the Executive determines that
a public resource is of “historic scientic interest” to justify
monument designation under the Antiquities Act.111 But can
public land simply lose its historical or scientic interest? The
two statutes are light on guidance to begin with (indeed, this is
a valid criticism of the statutes and a reason for concern as the
Executive identies lands for withdrawal). A lack of guidance,
however, should heighten concern about a decision to reverse
a withdrawal, a legislative one with legal, economic, and envi-
ronmental ramications.
D. ReveRSinG a lanD withDRawal DoeS not
effectively aboliSh an act of conGReSS
Because the power to reverse a land withdrawal
through executive action is not inherent to the power to with-
draw land in the rst place we would expect Congress to
articulate some policy principles to guide the decision to return
land to the public domain. This is notably distinct from the
approach taken by the only existing legal authority on abolish-
ing a national monument under the Antiquities Act, contained
in a 1938 Attorney General opinion.112 In the opinion for Presi-
dent Coolidge, the Attorney General reasoned that the execu-
tive action to withdraw land was in effect an act of Congress
itself.113 If one conceives of an executive order, or presidential
proclamation as an act of Congress, then revoking that order
or proclamation would effectively abrogate an act of Congress,
something the President obviously cannot do.114
In 1924, President Calvin Coolidge proclaimed Castle
Pinckney National Monument from a U.S. fort that had existed
in the Charleston harbor since the early Nineteenth Century.115
Fourteen years later, President Franklin D. Roosevelt wanted to
abolish the monument and transfer the land to the control and
jurisdiction of the War Department.116 Attorney General Homer
Cummings advised the President that he was without authority
to issue the proposed proclamation revoking the monument.117
The opinion borrowed heavily from an earlier 1862 Attorney
General opinion regarding the President’s power to return a
military reservation to the public domain:
A duty properly performed by the Executive under
statutory authority has the validity and sanctity which
belong to the statute itself, and, unless it be within
the terms of the power conferred by that statute, the
Executive can no more destroy his own authorized
work, without some other legislative sanction, than any
other person can. To assert such a principle is to claim
for the Executive the power to repeal or alter an act of
Congress at will.118
The view that a land withdrawal made by the President
under discretion vested in her by statute was in effect a with-
drawal by the Congress itself pervades several earlier Attorney
General opinions.119 While I would reach the same outcome
– requiring an express or implied delegation by Congress to
revoke –the opinions rely on an outdated view of executive
actions that will be updated if a court reaches the issue.
As noted above, executive actions taken pursuant to
authority provided to the President by Congress are distin-
guished from orders based on the President’s exclusive consti-
tutional authority. Both are discretionary government functions.
Both can be legislatively modied and nullied. And both,
when based upon legitimate constitutional authority or statu-
tory grants of power to the president, are equivalent to laws.120
When an executive order conicts with a statute, the statute
takes precedence.121 The validity of an executive action, then, is
with reference to the underlying authority, but is not a stand-in
for that authority where the Executive carries out a Congressio-
nal delegation.
Yoo and Ganziano are right that the 1938 Cummings Opin-
ion is on uneven factual and legal ground.122 The document
is an outdated and unsatisfying guidepost for such a weighty
issue, and it is unclear what inuence the opinions will have on
a reviewing court today.123 On the one hand, Attorney General
opinions are not binding on the President.124 But statutes are,
and as with jurisprudence, Congress can incorporate a legal
interpretation of the Attorney General into a subsequent legisla-
tive schemes and ratify that interpretation. While a reviewing
court today will likely disagree that President Trump is effec-
10 Sustainable Development Law & Policy
tively revoking an Act of Congress by reversing withdrawals
under the Antiquities Act and OCSLA, it should be persuaded
that executive action over public lands must derive from legis-
lative authority.
Iv. thE antIquItIEs act and ocsla cannot BE
rEad to dElEgatE rEvocatIon authorIty
The President has no inherent authority to revoke a land
withdrawal. The authority to withdraw land in the rst place
emanates from Congress’ Constitutional authority.125 Whether a
President may revoke a land withdrawal is properly understood
as an executive action distinct from the original withdrawal
itself. The lawfulness of that action depends on whether Con-
gress intended her to have that power.126
A rough division of authority between Congress and
the President has grown around specic statutes and long-term
understandings.127 Yoo and Ganziano argue that OCSLA and
the Antiquities Act “do not even attempt to limit the president’s
power to reverse previous withdrawals.”128 This approach
relies on their argument that possession of the authority to grant
implies the authority to revoke. This theory is not only incorrect
as a matter of law but is misplaced where the authority arose
from Congressional delegation. It is also wholly inconsistent
with Congress’ treatment of executive withdrawal authority in
other statutory schemes. Congress has (a) repudiated implied
executive authority in the public lands context, and (b) demon-
strated that it knows how to delegate revocation authority and
has arguably ratied legal interpretations of limited executive
authority under the Antiquities Act.
a. conGReSS haS RepuDiateD implieD executive
withDRawal authoRity.
The Executive once exercised broad implied withdrawal
authority, including an implied power to modify and revoke
prior withdrawals. Beginning soon after the nation’s found-
ing, Presidents set aside land for numerous military bases and
Indian reservations on the assumption that no statutory del-
egation of authority was needed.129 In several instances, this
assumption supported an implied power to modify or revoke
the prior withdrawal.130 For example, Presidents commonly
eliminated or reduced the size of Indian reservations that had
been established through executive order.131 Eliminating and
reducing Indian reservations was particularly controversial,
since the withdrawal was not simply a protective action directed
at the underlying land, but granted rights of occupancy and use
to Indian communities.132 The executive actions around reser-
vations and oilelds were also categorically different from the
withdrawals contemplated by the Antiquities Act and OCSLA.
They were extremely granular actions, reecting a local pres-
ence of the Executive in managing conict between the Indian
tribes and surrounding communities, as well as accommodating
for development in the national interest, such as railroads and
other public works.
As national policy toward public lands shifted from dis-
position to reservation, Congress conceded broad managerial
authority to the executive in a series of statutes, including
the Antiquities Act.133 Congress’ failure to repudiate earlier
withdrawals also led the courts to infer acquiescence in some
“implied nonstatutory authority . . . construed to ll all the
interstices around express delegations.”134 A major Supreme
Court case, United States v. Midwest Oil Co.,135 upheld a with-
drawal by President Taft that directly contradicted a recent
statute, reasoning that “scores and hundreds” of executive
orders establishing or enlarging Indian and military reservations
and oil reserves had established an allocation of power.136 The
case came to stand for the proposition that presidential author-
ity is stronger with respect to powers that Presidents applied
expansively in a pattern of actions to which Congress has
acquiesced.137 Presidents continued to push the boundaries of
delegated withdrawal authorities. 138
Eventually, Congress reasserted control over withdrawals
and reservations of public lands by limiting actions that could
be taken by the executive branch. This included a policy of
walking back executive authority to return withdrawn land to
the public domain. For example, the National Forest Manage-
ment Act provided that forest reserves could only be returned to
the public domain by an act of Congress.139 Then in 1976, Con-
gress extinguished all non-statutory authority and most earlier
statutory authority with the Federal Land Policy Management
Act (FLPMA), replacing these authorities with new procedures
for withdrawals.140 FLPMA concluded an exhaustive review
of federal land policy by the Public Land Law Review Com-
mission, which reported to Congress in 1970 with an overall
message of reasserting public control over executive with-
drawal authority.141 While earlier implied executive authorities
are instructive, FLPMA’s allocation of withdrawal authority
between the Executive and Congress should control any present
inquiry into the Antiquities Act and supplies a powerful back-
ground principle for interpreting OCSLA as well.
FLPMA expressly repealed the Executive’s implied del-
egation of withdrawal authority as well as twenty-nine statu-
tory provisions for executive withdrawal.142 This acted on a
principal recommendation by the review Commission that
large-scale permanent or indenite withdrawals should only be
accomplished by an act of Congress.143 The Commission also
recommended that smaller-scale withdrawal authority remain-
ing with the executive branch should be conned to specied
purposes, governed by more specic procedures, open to public
input, and generally of limited duration.144 Despite these rec-
ommendations, Congress conspicuously left the Antiquities Act
in place, with very limited discussion of why.145 Congress also
expressly exempted the “Outer Continental Shelf” from the
FLPMA denition of “public lands,” leaving OCSLA in place
as well.146
In light of FLPMA, a court should be reluctant to nd
implied authority to revoke an executive action, particularly
within statutory language that has withstood the review of leg-
islators with an eye for eliminating implied authorities. There
is no practice of executive reversal of land withdrawals under
the Antiquities Act and OCSLA, and courts upholding implied
11
Spring 2019
executive authority were only willing to do so in light of some
practice in which Congress had acquiesced.
b. conGReSS knowS how to DeleGate Revocation
authoRity anD haS paSSeD up oppoRtunitieS to
amenD the antiQuitieS act anD ocSla
Congress knows how to delegate revocation authority
when it wants to. Several turn-of-the-century statutes delegat-
ing withdrawal power to the President specically included a
provision allowing the President or the Secretary of the Interior
to revoke a prior withdrawal. The Forest Service Organic Act
of 1897 authorized the President to establish national forest
reserves to “revoke, modify, or suspend” any past and future
executive order or proclamation establishing a national for-
est.147 Following a big ght about the controversial withdraw-
als of President Cleveland under earlier forest acts, Congress
amended the statute to “remove any doubt which may exist per-
taining to the authority of the President . . . to revoke, modify
or suspend.”148 The President’s express authority to revoke,
modify, and vacate certain orders and proclamations establish-
ing national forests remains today.149
Other examples of express revocation authority include
Congress’ 1901 amendment to the Federal Desert Land Act
to authorize the Secretary of the Interior to restore withdrawn
lands to the public domain after a period of time,150 and the
1910 Pickett Act, which gave the President authority to “tempo-
rarily” withdraw public lands but also provided that those with-
drawals were to “remain in force until revoked by him or an
Act of Congress.”151 It is clear from these examples that both in
the years leading up to the Antiquities Act and after its passage,
Congress considered the difference between one and two-way
withdrawal schemes in various contexts. To read an implied
authority to revoke into the Antiquities Act or OCSLA would
render the express revocation clauses in other statutory authori-
ties as mere surplusage.152
FLPMA also created a process for the Secretary of the
Interior to terminate several categories of prior executive with-
drawals. With FLPMA, Congress did not expressly modify,
revoke or extend previous withdrawals153 but instead directed
the Secretary of the Interior to review a substantial number of
withdrawals and report to the President recommendations con-
cerning their continuation.154 The President would then report
his recommendations to Congress, and the Secretary would be
permitted to terminate any executive withdrawals unless Con-
gress objected by a concurrent resolution within ninety days.155
As of 1981, 233 withdrawals covering about 20.4 million acres
had been revoked under this process.156
To reiterate, FLPMA expressly provided that the Secretary
shall not modify or revoke any withdrawal creating a national
monument under the Antiquities Act.157 The House Committee
on Interior and Insular Affairs report on the statute conrms it
“would also specically reserve to Congress the authority to
modify and revoke withdrawals for national monuments created
under the Antiquities Act.” 158 This language is a clear signal
that Congress was aware of the 1938 Attorney General opin-
ion arguing that legislators retained sole authority to revoke a
monument under the Antiquities Act.159 And when “Congress
is deemed to know the executive and judicial gloss given to
certain language” a later statute comprehensively addressing
the subject is persuasive that Congress has adopted the existing
interpretation.160 The House Report also alleviated concerns
that FLPMA only restricted the Secretary of the Interior’s
authority to revoke monuments, while remaining silent as to the
President’s authority.161
There have been numerous proposals to amend the Antiq-
uities Act over the last several decades, the most recent intro-
duced on May 2, 2017.162 In reviewing these proposals, I did
not locate a single attempt to expressly authorize the President
to unilaterally revoke a monument designation. If FLPMA did
not conrm otherwise, we might infer that Congress already
assumes the President has this authority. Instead, the bulk of the
proposals have been to increase Congress’ oversight over the
designation and management of national monuments.163
v. rEvocaBIlIty and our EnvIronmEntal
PolIcy oBjEctIvEs
The foregoing analysis demonstrates that, as a matter of
law, the President cannot revoke a unilateral land withdrawal
under the Antiquities Act or OCSLA. This section raises norma-
tive arguments for reaching the same outcome, particularly in
light of these statutes’ utility in addressing contemporary envi-
ronmental policy objectives such as climate change adaptation
and mitigation.
Congress enacted the Antiquities Act and OCSLA with
very different purposes, and their Presidential withdrawal
authorities are different tools in contemporary environmental
policy. The Antiquities Act was motivated primarily by concern
for losing public land resources and historical artifacts before
Congress could act. The withdrawal authority was central to
this purpose. OCSLA was a much broader legislative scheme,
providing for federal jurisdiction of the outer continental shelf
and authorizing the Secretary of Interior to lease those lands for
mineral development. The withdrawal provision carries nearly
identical legal effect to its analogous provision in the Antiqui-
ties Act, though it is often obscured by the broader purposes of
OCSLA.
The President may not proclaim a national monument
under the Antiquities Act with the express purpose of address-
ing climate change, for instance. However, protecting areas
deemed to have “historic or scientic”164 interest under the
Act can nonetheless have economic and environmental ben-
ets consistent with our climate change goals. Proclaiming a
national monument brings natural areas under the purview of
an agency, generally the National Park Service, Forest Ser-
vice, or Fish and Wildlife Service, with expertise in long-term
conservation of natural resources and unique ecologies. These
protected areas serve as carbon sinks and havens for biological
diversity. Most importantly, the effect of monument status is
also to freeze mineral extraction and other development there,
keeping fossil resources in the ground.
12 Sustainable Development Law & Policy
Studies show that the old vulnerability of antiquities loot-
ing has given way to the new vulnerability of climate change
for many of our country’s most iconic and historic sites. A
report by the Union of Concerned Scientists chronicles how
many of these sites are particularly at risk from rising sea lev-
els, more frequent wildres, increased ooding, and other dam-
aging effects of climate change. 165 The Antiquities Act would
not seem to permit land withdrawal for the sake of creating a
carbon sink to keep fossil fuels in the ground. However, once
an area is deemed to have “historic or scientic interest” under
the Act, the damaging effects of climate change should be a
consideration in taking protective measures.
As previously discussed, OCSLA permits the President
to withdraw areas of the outer continental shelf from mineral
leasing for any purpose.166 President Obama’s Executive Order
on the North Bering Sea relied on OCSLA to create a “climate
resilience area.”167 The corresponding withdrawal of outer con-
tinental shelf lands “furthere[d] the principles of responsible
public stewardship entrusted to [the White House] and . . . the
importance of the withdrawn area to Alaska Native tribes, wild-
life, and wildlife habitat, and the need for regional resiliency in
the face of climate change.”168
The controversy surrounding withdrawals under both stat-
utes is understandable and extends much deeper than disagree-
ment over how, if at all, to let our concern for climate change
drive our decisions around resource extraction and natural
area preservation. Outcry over President Obama’s withdrawals
and President Trump’s reaction reect both real political dis-
agreement over federal land management priorities, as well as
valid concern for the reach of executive authority over public
lands. Unilateral executive authority to reverse these actions is
improper regardless of the claim and would only seem to fur-
ther aggrandize the President’s public lands authority.
One observation is that a one-way authority to protect
lands, but not to undo these protections, plays to the Execu-
tive’s advantages while avoiding its faults. With the Antiquities
Act, Congress recognized that the Executive could act more
nimbly to identify and protect valuable resources. If it disagreed
with a proclamation, Congress remained free to undo or modify
the President’s action, albeit subject to a possible presidential
veto.169 Grand Staircase-Escalante National Monument, with a
boundary currently in legal limbo, is a good example. President
Clinton withdrew the lands after legislative proposals for vary-
ing degrees of legal protection cleared House and Senate com-
mittees but ultimately failed.170 Deliberative approaches to our
public resources are preferable, but there is a ne line between
productive deliberation and political gridlock. Gridlock might
prevent us from taking any protection action at all, with irre-
versible consequences for natural and cultural resources.
We should be less concerned about gridlock in the reverse,
to return lands to the public domain. Congress’s failure to take
protective action might be explained by the diffusion of pro-
environment interests. By comparison, industry interests advo-
cating for development and resource extraction of public lands
are relatively concentrated. This dynamic supports a one-way
executive authority to protect, overcoming gridlock to preserve
the status quo and putting the onus on concentrated interests
to make the case for development. Moving remedial legisla-
tion through both chambers can be a struggle171 and ultimately
requires the President’s signature, but Congress has success-
fully reversed monuments and other withdrawals in the past.
It is also important to note that President Obama’s use
of the Antiquities Act and OCSLA was much more delibera-
tive than critics would suggest. The designation of Bears Ears
National Monument is a good example. The monument was
rst discussed in the 1930s as part of an unsuccessful pro-
posal to establish an Escalante National Monument.172 Several
years ago, an Inter-Tribal Coalition unsuccessfully petitioned
Utah’s Congressional representatives.173 The tribes then suc-
cessfully petitioned President Obama, whose administration
undertook extensive study and community engagement before
making proclaiming the monument almost two years later.174
The process exhibits some of the unique tools at the Execu-
tive’s disposal in making withdrawal decisions, including eld
ofces and experienced agency staff throughout the West. The
Executive branch is also arguably better suited than Congress to
integrate the policy considerations around withdrawal into the
broader scheme of public lands authorities the agencies imple-
ment.
Singing the praises of executive withdrawal authority
– exercising agency expertise, grassroots community engage-
ment, and others – might undercut arguments that executive
reversal of land withdrawals would be too drastic. Presumably,
the reversal of a predecessor’s monuments or outer continental
shelf withdrawals would reect patience, sound science and a
balancing of stakeholder interests. Unfortunately, President’s
Trump’s proclamations and the underlying review of monument
designations by the Interior Department have none of these
qualities. They are starkly political and evidence a concerning
preoccupation with development our fossil fuel resources at a
time when most economic and environmental assessments sug-
gest leaving them in the ground.
A nal justication for a one-way executive withdrawal
authority, then, is that we cannot afford to play politics with our
public resources. The benets of protective measures under the
Antiquities Act and OCSLA come in their stability, particularly
with respect to climate change. National monuments are shown
to have signicant economic benets over time, and these ben-
ets can far outweigh the extractive value of the resources they
hold.175 However, it takes time for surrounding communities
to invest in an economy of conservation, just as environmental
benets such as preserving biodiversity or a carbon sink, or
the scientic research these resources enable, are measured not
in years but lifetimes. It is in recognition of these long-term
benets that monuments have staying power and are frequently
expanded and enhanced by Congress rather than reversed.
We will never take full advantage of what Antiquities Act or
OCSLA withdrawals have to offer if each Presidential election
brings with it the specter of reversal for these unique places and
the communities they support.
13
Spring 2019
vI. conclusIon
The ongoing debate over executive land withdrawal
authority implicates legal and practical considerations of
great importance. As this paper has argued, President Trump’s
unprecedented steps to reverse the protective measures of his
predecessors – not only President Obama but Presidents Bush,
Clinton, and potentially others – have overstepped his existing
legal authority. Congress could amend the Antiquities Act or
OCSLA to expressly permit executive reversal, but this would
further aggrandize executive authority over public lands. In
this way, a power to revoke suffers from the same criticism that
animates core opposition to the withdrawal authority to begin
with: unilateral executive action has the potential to be disrup-
tive and unaccountable in either direction. In considering its
response to President Trump’s recent actions, then, Congress
may wish to update the Antiquities Act and OCSLA to clarify
and modernize the scope of withdrawal authority. But in so
doing, Congress should not be persuaded that the power to “do”
requires the power to “undo” to be effective.
enDnoteS
1 54 U.S.C. § 320301 (2012).
2 43 U.S.C. §§ 1331–1356 (2012).
3 See Review of Designation s Under the Antiquities Act , 82 Fed. Reg.
20,429 (May 1, 2017) (directing the Secret ary of the Interior t o review all
Presidential d esignations or expansion s of designations under the A ntiquities
Act made since Janu ary 1, 1996, where the designatio n or expansion covers
more than 100,000 a cres).
4 Implementing a n America-First Off shore Energy Strateg y, 82 Fed. Reg.
20,815, 20,817 (May 3, 2017) (reversing President Oba ma’s January 27, 2015,
and December 20, 2016, withd rawals in the Arctic a nd Atlantic Oceans).
5 See League of Con servation Voters v. Donald Trump, No. 3:17-cv-
00101-SLG, 2019 WL 1431217 (D. Alaska, Mar. 29, 2019) (concluding that
Section 12(a) of the OCSLA permit s a president to withdraw l ands from
disposition but not t o revoke a prior withdrawal). The re are several cases
challenging t he reduction of Grand Stai rcase-Escalante Monu ment. See Wil-
derness Soc’y v. Trump, Case No. 1:17-cv-2587-TSC (D.D.C. Dec. 4, 2017);
Grand Stai rcase Escalante Par tners v. Trump, Case No. 1:17-cv-02591-TSC
(D.D.C. led Dec. 4, 2017). Five federally recogni zed tribes are cha llenging
the reduction t o Bears Ears National Monu ment. Hopi Tribe v. Trump, Case
No. 1:17-cv-02590-TSC (D.D.C. Dec. 4, 2017).
6 See infra Par t II.
7 See infra Par t III.
8 See infra Par t III.
9 See infra Par t IV.
10 See infra Par t IV.
11 See infra Pa rt V.
12 See infra Par t VI.
13 u.S. conSt. aRt. iv, § 3, cl. 2 (“The Congress shall have t he Power to
dispose of and ma ke all needful Rules an d Regulations respect ing the Terri-
tory or other P roperty belonging t o the United States.”).
14 See generally ch aRleS f. wheatley, StuDy of withDRawalS anD ReSeRva-
tionS of public Doma in lanDS (1969).
15 Id. at 2.
16 Id. at 1.
17 Id. at A-4, A-5.
18 Id. at 1.
19 See infra Par t IV (discussing the Federa l Land Policy Management Act).
20 Specic actions to “disp ose” of the public domain included homestea d laws
and government sale s to dispense cheap land, mini ng laws to open mineral
wealth, gifts of fre e land to railroads and land gr ants to new states. Withdrawi ng
specic lands f rom disposal was “to become an imp ortant means of accomplish-
ing federal pur poses or policies when disposal laws thr eatened to sweep too broad
a brush.” See David H. Getches, Ma naging the Public Lands: Th e Authority of
the Executiv e to Withdraw Lands, 22 nat. ReSouRceS J. 279, 282–83 (1982). The
creation of Yellowstone National Park as a “pleasu ring ground” on a large and
remote tract of feder al lands in Wyoming in 1872 is widely regarded as the begin-
ning of the modern feder al lands systems. See George Coggin s, feDeRal public
lanD anD ReSouRceS law 103, 106 (6th eD. 2007).
21 See Getches , supra note 20, at 179 (listing early stat utory authorities for
executive withdr awals of land for Indian rese rvations, milita ry installation s,
timber land s to preserve resourc es for the military, town sit es, salt springs,
mineral de posits, and other pur poses).
22 See id. By the end of th e nineteenth centu ry, sixty-seven percent of
the origina l public domain outside Alask a had been transfer red to private
ownership, but 473,836,402 acr es were still owned by the Unit ed States. Id.
The amount of land r emaining in the public d omain was reporte d as of June
30, 1904 by the Public Land s Commission. See S. Doc. No. 189, 58th Cong.,
3d Sess. 139, 13 (1905).
23 See infra Par t V.
24 See infra Par t IV(B).
25 Getches, supra no te 20, at 300.
26 See Antiquit ies Act 1906–2016: Maps, Facts, and Figures, natl paRkS
SeRv. aRcheoloGy pRoGRam, https://ww w.nps.gov/archeology/sites/antiquities /
MonumentsList.ht m (last visited April 7, 2019) (overviewing the Nat ional
Park Service’s chronolog ical list of monuments create d by Presidents from
1906 through Sep tember 15, 2016).
27 caRol haRDy vincent, conG. ReSe aRch SeRv., national monumentS anD
the antiQui tieS act (2016).
28 See id. (noting tha t Presidents T. Roosevelt, Taft, Hoover, and G.W. Bush
are the more prom inent Republican users of t he Act).
29 54 U.S.C. § 320301(a) (2012). The full text of the delegation rea ds: “Sec. 2.
That the Presid ent of the United States is here by authorized, in hi s discretion,
to declare by public pro clamation historic la ndmarks, histor ic and prehistoric
struct ures, and other objects of h istoric or scientic int erest that are situat ed
upon the lands ow ned or controlled by the Gover nment of the United States t o
be national monu ments, and may reserve a s a part thereof parcels of la nd, the
limits of which in a ll cases shall be con ned to the smallest area c ompatible
with proper ca re and management of the object s to be protected: Provide d,
That when such objec ts are situated upon a t ract covered by a bona de
unperfect ed claim or held in private owne rship, the tract, or so mu ch thereof
as may be necessa ry for the proper care a nd management of the object, may
be relinquishe d to the Government, an d the Secretary of the I nterior is hereby
authorized t o accept the relinqui shment of such tracts in b ehalf of the Gov-
ernment of th e United States.” Id.
30 Id. There does not a ppear to be a functio nal difference betwe en a “with-
drawal” and “t he reservation of parcel s thereof.”
31 Id.
32 See Roberto I raolo, Proclamations , National Monuments, a nd the Scope
of Judicial Revie w under the Antiquit ies Act of 1906, 29 wm. & maRy envtl.
l. & poly Rev. 159, 172–174 (2004) (providing a n exhaustive discussion
of Supreme Cour t and lower court cases con fronting challenges t o national
monument proclam ations as well as the limit ed scope of judicial review over
presidential pr oclamations under the A ntiquities Act).
33 See generally Joh n yoo & toDD Ganziano, pReSiDentia l authoRity to
Revoke oR ReDuce national monu ment DeSiGnationS (2017) (contending
Congress did not i ntend for the Act to be used at such a m assive scale by the
Exec uti ve).
34 See Iraolo, supra n ote 32, at 160, 161 (suggesting these br oad purposes are
more appropria te for a national park or design ation established by Cong ress).
35 See id. at 160 (asserti ng that large monuments violat e the Antiquities Act
because the Pre sident’s authority to determ ine size was intended to be lim ited).
36 Id. at 161 (referencing Congression al power under U.S. Const. art . IV § 3,
cl. 2 to dispose of and ma ke all needful Rules a nd Regulations respec ting the
Territory or Pro perty belonging to t he United States).
37 Presidents have bot h enlarged and dim inished monuments in a h andful
of cases, and it is un clear whether these change s were legally authorized . It
continued on page 27