The Legacy of Bears Ears National Monument and the Antiquities Act Under the Trump Administration

Alex Clay, KLJ Notes Editor[1]

A last-minute national monument designation by former President Obama has brought a century-old statute[2] and the president’s authority thereunder into Republican crosshairs. In his last month in office, President Obama established the Bears Ears National Monument—preserving 1.3 million acres in Southern Utah[3]—using his authority under the Antiquities Act of 1906.[4]

The Act is a unique gift from Congress to the president. Using its power under the Property Clause,[5] Congress authorized the president “in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other object of historic and scientific interest that are situated upon lands owned or controlled by the United States to be national monuments.”[6] The Act has been used by presidents to unilaterally designate over 100 national monuments[7] and has sparked Congress to turn some into National Parks.[8]

Now, two Utah Representatives—Jason Chaffetz and Bob Bishop—are spearheading an attack on both the Bears Ears designation and the Act itself.[9] Chaffetz has characterized the designation as an “‘egregious’ demonstration of the President’s disregard for the people of Utah”[10] and “one of the biggest land grabs in the history of the United States.”[11] Both Representatives are calling for President Trump to revoke the designation[12] or, in the alternative, for Congress to terminate the monument.[13]

But criticism of monument designations is nothing new and, instead, appears to be recurring evidence of “a larger ideological dislike of the Antiquities Act”[14] by congressional Republicans. For example, Bill Clinton’s designation of the Grand Staircase-Escalante National Monument in 1996 brought complaints that echo those of Chaffetz and Bishop. Republican Senator Orin Hatch then stated that “[i]n all my years in the U.S. Senate, I have never seen a clearer example of the arrogance of federal power . . . [i]ndeed, this is the mother of all land grabs.”[15]

It is uncertain whether the old criticisms will have any new impact during the Trump Administration. It is doubtful that President Trump possesses the power to revoke another President’s designation under the Antiquities Act, but this question is certainly not settled. “No president has ever abolished or revoked a national monument proclamation” and scholars have long taken the position that the Antiquities Act does not grant the President such authority.[16] However, many supporting this view based their opinion on seemingly the only authority addressing the issue: a 1938 U.S. Attorney Opinion, which opined that the President is without authority to issue proclamations revoking national monuments.[17] And recent scholars have expressed the view that the Act does grant the President such authority, despite the 1938 Opinion, because “the grant of power to a president implies the power to rescind it.”[18]

Though less doubtful, it also appears uncertain that President Trump has the power to modify the Bears Ears proclamation. A 2000 Congressional Research Service Report concluded that a President can modify a national monument proclamation using the Act’s language requiring a monument to be “confined to the smallest area compatible with the proper care and management of the objects to be protected.[19] But some scholars remain skeptical, noting that an original proclamation represents the President’s judgment that the area protected already is the “smallest area compatible.”[20] Therefore, the view goes, a subsequent limiting proclamation would be beyond “simply correcting a mistake . . . to conform to the narrow language of the statute” and would instead exceed the President’s power under the Act.[21]

It seems much more likely that the dominant threat to any of Obama’s 29 national monuments[22] is Congressional action. A determined Congress could limit the expenditure of funds to a monument’s administration or act to abolish a monument altogether.[23] However, such measures are rarely taken,[24] as lawmakers are likely weary of the fact that the public places a high value on the protection of historic landscapes, or that strong public support often develops for national monuments in the long run.[25] Even Clinton’s wildly unpopular designation in Utah was never repealed.[26]

Over time, the Antiquities Act and the President’s designations thereunder have “proved remarkably resilient” in the face of Republican opposition.[27] But now, with the potential for an ideological shift in the Supreme Court’s makeup under the Trump Administration, the Act’s legacy may prove to be less certain than ever before.

[1] J.D. Expected May 2018.
[2] Antiquities Act of 1906 16 U.S.C. § 431 (2016).
[3] Kirk Siegler, Utah Representative Wants Bears Ears Gone and He Wants Trump To Do It, NPR (Feb. 5, 2017, 8:10 AM)
[4] Antiquities Act of 1906, 16 U.S.C. § 431 (2016).
[5] See Blackman, supra note 2.
[6] Antiquities Act of 1906, 16 U.S.C. § 431 (2016).
[7] Christine Klein, Without a Trace: Can One President Abolish National Monuments Proclaimed by Previous Presidents?, Univ. of Fla. Law Faculty Blogs (last visited March 3, 2017, 12:27 AM)
[8] Notably, the Grand Canyon National Park, Olympic National Park, Grand Teton National Park, and Zion National Park all began as national monuments. Christine A. Klein, Preserving Monumental Landscapes Under the Antiquities Act, 87 Cornell L. Rev. 1333, 1395 fn. 410 (2002) (citing Gary Brayner, John Leshy on Shaping the Modern West: The Role of the Executive Branch, Resource Law Notes (Natural Res. Law Ctr. Sch. of Law, Univ. of Colo. At Boulder) Mar. 2000 at 2.)
[9] Michelle Cottle, Keeping the President’s Hands Off Utah’s Land, The Atlantic (Sep. 9, 2016)
[10] Amy Joy O’Donoghue, Chaffetz demands White House document dump over Bears Ears Designation, Desert News Utah (Dec. 29, 2016, 2:50 p.m.)
[11] Jason Mark, The Antiquities Act Has Paved The Way For Some of America’s Most Awesome National Parks. Now, Republicans Want to Roll it Back, Sierra Club (Jan. 31, 2017) (citing Alexandra Desanctis, Reversing Obama’s Last-Minute Land Grab, Nat’l Rev. (Jan. 2, 2017, 5:37 PM)
[12] See Mark, supra note 10; Siegler, supra note 2.
[13] See Mark, supra note 10.
[14] Id.
[15] James R. Rasband, Utah’s Grand Staircase: The Right Path to Wilderness Preservation? 70 U. Colo. L. Rev., 483, 485 n. 6 (1999) (quoting Laurie Sullivan Maddox, Taking Swipes at Clinton, Utahns Vow to Fight Back, Salt Lake Trib., Sept. 19, 1996 at A5.) See also Id. at 490-91 (describing Utah Senator Wallace Bennett’s similar response to President Johnson’s last-minute designation of additional land to the Arches and Capitol Reef National Monuments).
[16] Alexandra M. Wyatt, Cong. Research Serv., R44687, Antiquities Act: Scope of Authority for Modification of National Monuments, Summary (2016).
[17] 39 U.S. Op. Atty. Gen. 185, 189 (1938), see e.g. Klein, supra note 7, at 1388; Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 552-54 (2003).
[18] Todd Gaziano & John Yoo, Trump Can Reverse Obama’s Last-Minute Land Grab, Wall Street J., (Dec. 30, 2016, 7:08 PM) (comparing the revocation power to the President’s unilateral power to remove officials in Myers v. United States, 272 U.S. 52 (1926) and to terminate treaty agreements).
[19] See Blackman Blog (citing Pamela Baldwin, Cong. Research Serv., RS20647, Authority of a President to Modify or Eliminate a National Monument, 2 (2000)).
[20] See Squillace, supra note 17, at 555.
[21] Id.
[22] Juliet Eilperin & Brady Deniis, With New Monuments in Nevada, Utah, Obama Adds to His Environmental Legacy, Wash. Post (Dec. 28, 2016)
[23] Both forms of Congressional action were used in opposition to President Franklin D. Roosevelt’s 1943 designation of the Jackson Hole National Monument. John F. Shephard, Up the Grand Staircase: Executive Withdrawals and the Future of the Antiquities Act, 43 Rocky Mtn. Min. L. Inst. 4-1, 4-3 (1997).
[24] Pamela Baldwin, Cong. Research Serv., RS20647, Authority of a President to Modify or Eliminate a National Monument, 2 (2000)).
[25] See Klein, supra note 7, at 1391–92.
[26] Id. at 1389.
[27] Id. at 1388.

*Featured image by the Bureau of Land Management.