2018 Vermont Law Top 10 Environmental Watch List

The President’s Monumental Mistakes

On Monday, Dec. 4, President Trump flew to Utah to sign two Antiquities Act proclamations that made history. They weren’t notable for the protections they included, but instead for what they left out. These two proclamations effectively carved up the Grand Staircase-Escalante National Monument and the Bears Ears National Monument and replaced them with three smaller ones, dramatically reducing the environmental protections for nearly 2 million acres of federal lands in central and southern Utah. These proclamations constituted the first presidential reduction of any national monument for the purpose of allowing more oil and gas development and recreational vehicle access since the Antiquities Act was passed in 1906.


Bears Ears National Monument. Photo courtesy of Tim Peterson.

The Antiquities Act allows presidents to preserve historic, scientific, and cultural resources located on federal public lands. It was essentially a gift of Congress’s constitutional powers under the Property Clause to the president. The plain text of this congressional delegation does not include the corollary power to abolish national monuments. The president’s power is clearly limited by statute, and by the Constitution, to creating national monuments, not abolishing or reducing them.

U.S. Rep. John F. Lacey, a Republican from Iowa, introduced the Antiquities Act in January 1906. It passed on June 8 of that year, and since then, almost every president since Theodore Roosevelt has created at least one national monument. The act has created the most diverse public land preservation system in the United States, protecting objects and surrounding lands for their unique natural, cultural, or scientific features. Today, there are a total of 157 monuments, protecting historical battle sites, archaeological treasures, unique ecosystems, geological features, and plenty of dinosaur bones (there is even a Dinosaur National Monument, in northwest Colorado). Congress has sometimes turned monuments into national parks, including the Grand Canyon National Monument, Jackson Hole National Monument (which later became Grand Teton National Park), Saguaro Desert, Death Valley, and Olympus National Monument (which later became Olympic National Park), and Sieur de Monte National Monument (which later became Acadia National Park). Monuments are not a creature of one political party or the other¾the nation has seen Democratic and Republican presidents set aside lands, waters, and historic resources as part of their legacy in office.

Downsizing Monuments

Click on the photo to watch a video about this issue with article co-author Margaret Shugart.

The 2017 reductions at Grand Staircase-Escalante and Bears Ears are possibly only the beginning. President Trump issued an Executive Order soon after taking office, instructing the Interior secretary to review all national monuments of more than 100,000 acres, as well as those that the secretary determined were created “without adequate public outreach.” At the end of the review period, the secretary was directed to produce a list of those that do not satisfy the “requirements and original objectives” of the Antiquities Act. The Department of Interior’s initial review produced 27 monuments that should be analyzed further for potential elimination or reduction. Monuments remaining on the immediate “hot seat” for potential reductions include Cascade-Siskiyou National Monument in Oregon and California, and the Gold Butte National Monument in southern Nevada.

Although any reductions or eliminations to monuments are a devastating assault on the nation’s public lands legacy, the Bears Ears reductions in particular have been devastating to the people of the southern Colorado Plateau. The former 1.3 million-acre monument, created by President Obama on Dec. 28, 2016, is located in southeastern Utah, between the Navajo Nation, two Ute reservations, Glen Canyon Recreation Area, and Canyonlands National Park. President Obama created the monument in the waning days of his second term, establishing the first ever tribally-proposed national monument with a primary purpose of preserving the historical and ecological resources of irreplaceable importance to several regional tribes, including the Navajo, Hopi, Zuni, and Ute. The monument is named for two buttes that resemble bear ears, located in the high desert region north of Bluff, Utah, and contains over 100,000 archaeological sites, various unique desert ecosystems, as well as historical sites that are sacred to various tribes. Although not required to by law, the Obama administration held numerous public hearings in the region, including multiple public meetings in the Navajo Nation and on other reservations, to gather input and determine whether the local communities supported the designation. After receiving significant support from not only the tribes but also residents of local communities, business owners in the area, and those that use the region for recreational purposes, President Obama issued a proclamation establishing the monument on Dec. 28, 2016.

Fast forward several months later. Within two weeks of Trump signing the Executive Order requiring Secretary of Interior Ryan Zinke to review the ostensibly problematic monuments, the Department of Interior produced the list of 27 national monuments deemed excessively large or otherwise invalid. Secretary Zinke’s rapid delivery of this list of targeted monuments led many to conclude that the small cadre of Utah congressional representatives, who have been the most vocal opponents of these monuments dating back to the 1990s, had the attention of President Trump and Secretary Zinke as of inauguration day, if not before. Their enthusiasm at the proclamation signing ceremony in Salt Lake was palpable.

The national reaction to the Utah proclamations has been equally intense. Thousands of demonstrators packed the streets of Salt Lake City before and during Trump’s visit to protest the reductions. Shaun Chapoose, a member of the Ute Indian Tribe Business Committee, told reporters, “They declared war on us today. If they think we’re not prepared to protect it, they’re kidding themselves.” In the days following the Bears Ears and Grand Staircase-Escalante reductions, five lawsuits have been filed by environmental groups, tribes, and scientists. Outdoor retail giant Patagonia has threatened litigation too, changing its website home page to a black screen with the following text: THE PRESIDENT STOLE YOUR LAND.

Outside of Utah, the future of the other national monuments on Zinke’s list may depend on the success of these lawsuits. These monuments contain a broad range of unique scientific and cultural objects and landscapes, ranging from the lava fields of Craters of the Moon National Monument in central Idaho to the diverse underwater ecosystems of Papahānaumokuākea Marine National Monument and the Pacific Remote Islands in and around the Hawaiian Islands. Giant Sequoia National Monument is also under review, and even Katahdin Woods in Maine, donated by Roxanne Quimby of Burt’s Bees for the sole purpose of creating a national monument, is under consideration for reduction or elimination.

On a related front, certain members of Congress have begun their own assault on the Antiquities Act. There is a House bill under consideration that would essentially eviscerate it. The bill limits the categories of lands and resources that may be considered for national monument status, constrains the size of future monuments, prohibits marine monuments altogether, and gives the president the power to rescind past monuments. This is not the first time a bill like this has been introduced, and if past is precedent, it may not make it to the House floor. But if even one of these efforts succeeds, the additional damage to our nation’s public lands heritage may be irreparable.