In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act of 1906 and had previously ordered the Department of the Interior to review additional monuments whose designations stretch back decades.
But does federal law really allow the president to "repeal and replace" our national monuments once they're established?
In a recent amicus brief that Professor Bob Anderson (University of Washington) and I filed with 11 other legal scholars, we answer that question with a resounding "no." The plain and clear text of the Antiquities Act is intentionally narrow, authorizing the president to establish national monuments to protect "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" and to "reserve parcels" of public lands to create those monuments. The law does not provide any authority or process for reversing those designations or modifying the size of national monuments once they're established.
The law's legislative history reinforces its text. Throughout the early years of the 20th century, Congress and the executive branch proposed and debated a variety of proposals to stop the looting of Native American archeological sites and the destruction of ancient artifacts and structures. Protecting antiquities remained a key part of the legislation that Congress ultimately passed, but it was broadened to include authority to protect areas of general scientific value. In passing the law, legislators made clear that they were giving the president a nimble power to protect expansive swaths of public lands. Congress did not impose specific acreage limitations or provide future presidents the option to shrink national monuments created by their predecessors. It only delegated to the president a narrow authority to act quickly to protect sites and landscapes at risk of harm.
More recent public lands laws such as the Federal Land Policy and Management Act and the National Forest Management Act support the Antiquities Act's landscape-scale scope and further undermine the Trump administration's actions and claims. These statutes expanded and added tools for management and preservation and made clear that the president's authority remained limited to protecting resources at risk. Presidential attempts to downgrade, shrink, or otherwise negatively modify national monuments are unauthorized by statute and exceed the president's constitutional authority.
Several CPR Member Scholars joined me in filing the brief in support of the case brought against President Trump by five Native American tribes (Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Tribe of the Uintah and Ouray Reservation, and Zuni Tribe), Utah Diné Bikéyah, the Natural Resources Defense Council, and others. They are: Robert Glicksman of the George Washington University Law School, Christine Klein of the University of Florida College of Law, and Sandra Zellmer of the University of Montana School of Law.
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Sarah Krakoff | November 26, 2018
In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act […]
Alexandra Klass | November 20, 2018
Originally published in The Regulatory Review. Reprinted with permission. Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often […]
Alice Kaswan | November 19, 2018
Washington State has continued to try – unsuccessfully – to pass a carbon tax, with the latest effort, Initiative 1631, losing on November 6. The state's effort to control carbon is laudable, but Washington and other states contemplating how to fill the growing federal climate policy void should consider leading with a vision for a […]
Laurie Ristino | November 16, 2018
The midterm elections are over, and most of the races have been decided. The outcome will have consequences for a wide variety of policies and legislation, including the 2018 Farm Bill. So what's the status of the bill? What are its prospects for passage during what remains of the 115th Congress? And how will the […]
Melissa Powers | November 15, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. "Every system is perfectly designed to get the results it gets." If that's so, our climate and energy laws have been perfectly designed to fall short. […]
Sarah Krakoff | November 14, 2018
This post was co-authored with Shannon Roesler, a Professor of Law at the University of Oklahoma City School of Law. Before joining the law school faculty, she served as a law clerk to the Honorable Deanell Reece Tacha on the United States Court of Appeals for the Tenth Circuit. She was also a staff attorney and […]
Robin Kundis Craig | November 13, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. How much do presidents really matter to the United States' participation in international environmental law? Fairly obviously, presidential turnovers in the United States are absolutely critical […]
Victor Flatt | November 12, 2018
Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline. The case centered on the Trump administration’s […]
Matt Shudtz | November 8, 2018
For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government – to the extent one can divine a coherent vision – lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address […]