President Donald Trump issued two executive orders that could reverse or significantly revise the size and management of national monuments declared by presidents since January 1, 1996, including the 533 million acres of land and sea designated by President Barack Obama in the 34 national monuments he created during his time in office, a record.
Enacted during Theodore Roosevelt’s presidency to protect Indian artifacts and antiquities from looting and vandalism, the Antiquities Act of 1906 allows presidents to designate federal lands at risk of damage as national monuments without approval of Congress or states.
Speaking at the Department of the Interior on April 26, Trump issued an order directing the secretary of the Department of the Interior to review all presidential monument designations or expansions of more than 100,000 acres made under the Antiquities Act since January 1, 1996.
‘Egregious Abuse of Power’
Trump called the size and number of national monuments created by Obama “an egregious abuse of power.”
“I’ve spoken with many state and local leaders … who care very much about conserving land and are gravely concerned about this massive federal land grab,” Trump said. “[I]t never should have happened. I am signing this order to end abuses and return control to the people.”
Jonathan Wood, an attorney with the Pacific Legal Foundation (PLF), says presidents in recent decades have stretched their power far beyond the law’s original intent.
“Today, [the Antiquities Act] is primarily used to lock up huge swaths of land and ocean and prevent any economic use,” Wood said. “The best example of the act’s abuse is that only over the past 10 years did presidents claim they can designate monuments in the ocean, when the statute limits monuments to land owned or controlled by the federal government.”
The date, says Wood, is no accident.
“[Trump] chose 21 years, which is interesting because 20 years ago, [President Bill] Clinton designated the [1.9-million-acre] Grand Staircase-Escalante National Monument in the State of Utah, so the timeline basically bookends that designation and [the 1.35-million-acre] Bears Ears, also in Utah, under president Obama in late December 2016,” Wood said. “I’ve got to think there’s a reason for that.”
Considering Oil Production
Two days later, Trump signed an order requiring the secretaries of the Departments of Commerce, Defense, Homeland Security, and the Interior to review all designations and expansions of national marine sanctuaries and marine national monuments for their impact on offshore oil production.
This includes the Papahānaumokuākea Marine National Monument in the Pacific Ocean—first designated by President George W. Bush and expanded 400 percent, four times the size of California, by Obama—and the Northeast Canyons and Seamounts National Monument in the Atlantic Ocean, located off the New England coast.
Obama designated the latter monument in 2016, placing nearly 5,000 square miles of ocean off-limits to commercial fishing, a major economic driver in the region.
PLF has sued to overturn the Northeast Canyons monument designation on behalf of several fishermen groups, arguing the Antiquities Act specifically states monument designations are for land, not water.
Argument Over Authority
The outdoor gear company Patagonia and the Natural Resources Defense Council activist group have said they will fight in court any attempt by the Trump administration to rescind prior presidents’ national monument designations. They argue the law does not allow presidents to reverse those decisions.
A 2016 Congressional Research Service Report concluded while Congress has the authority to abolish a national monument, “presidential authority may be more constrained. No President has ever abolished or revoked a national monument proclamation, so the existence or scope of any such authority has not been tested in courts. However, some legal analyses since at least the 1930s have concluded that the Antiquities Act … does not authorize the President to repeal proclamations, and … also lacks implied authority to do so.”
The report acknowledges past presidents have reduced the size of national monuments and modified their management, stating the deleted acres and restrictions “do not meet the Antiquities Act’s standard that the protected area be the ‘smallest area compatible with the proper care and management of the objects to be protected.'”
Presidents have downsized 20 monuments. No court has ever overturned an alteration of monument boundaries.
Wood disagrees with the CRS report. He says an analysis produced by John Yoo, a law professor at the University of California-Berkeley, and PLF attorney Todd Gaziano examining the legislative history of the Antiquities Act shows the president has the same authority to undo or shrink a monument that he or she has to create it.
“Just as when a president issues an executive order, he can issue an executive order taking it back, and when an agency issues a regulation, it can undo it,” Wood said. “The same is true for proclamations creating monuments. Nothing stops a president from issuing another proclamation changing or undoing a monument.”
U.S. Rep. Rob Bishop (R-UT), a longtime critic of the Antiquities Act, said Trump’s actions are justified.
“I’m pleased to see President Trump recognize longstanding abuses of the Antiquities Act,” Bishop said in a statement. “It was created with noble intent and for limited purposes but has been hijacked to set aside increasingly large and restricted areas of land without public input.”
Kathy Hoekstra ([email protected]) writes from Saginaw, Michigan.
Alexandra M. Wyatt, “Antiquities Act: Scope of Authority for Modification of National Monuments,” Congressional Research Service, November 14, 2016: https://heartland.org/publications-resources/publications/antiquities-act-scope-of-authority-for-modification-of-national-monuments
John Yoo and Todd Gaziano, “Presidential Authority to Revoke or Reduce National Monument Designations,” American Enterprise Institute, March 28, 2017: https://heartland.org/publications-resources/publications/presidential-authority-to-revoke-or-reduce-national-monument-designations