WP/RMLUI Legal Corner: Bears Ears National Monument - Dueling Presidential Proclamations and the Antiquities Act
By Elizabeth Garvin, Esq., AICP
Introduction
We’ve been exploring case law in the RMLUI Legal Corner this year. In this column we look at the arguments that underpin the question of whether a president has the authority, pursuant to the Antiquities Act of 1906 (54 U.S.C. §§320301-320303), to reduce in size or completely eliminate a national monument established by a prior president.
This most recent chapter of the Antiquities Act saga started in 2017, when the Trump administration, through then-Secretary of the Interior Zinke, began a review of the boundaries of a number of national monuments, all established since the 1990s, including both Bears Ears and Grand Staircase-Escalante in Utah. The question of whether a president has the authority to reduce a national monument is an open, undecided legal question. Prior reductions either were not challenged in court or not decided by a court. Seeking to better understand how this issue might play out, the RMLUI, Lincoln Institute of Land Policy, and Jan Laitos, the John A Carver Jr. Chair at the University of Denver Sturm College of Law, presented the 7th Annual Carver Colloquium: To Shrink of Not to Shrink? Presidential Authority over National Monuments. The colloquium debate highlighted the key legal issues now presented in the Hopi Tribe case and considered how they might be determined. This article provides a summary of the debate. Video of the full colloquium and supplemental information about the Antiquities Act and the debater’s legal arguments can be found on the RMLUI website.
Shortly after the colloquium, Trump ordered the reduction of Bears Ears by about 1.1 million acres, with a remaining total acreage that is approximately 15 percent the size of the original monument. The resized monument was also split into two separate “units.” The proclamation also reduced the Grand Staircase-Escalante National Monument from 1.9 million acres to about 1 million acres. Multiple legal complaints were filed challenging the proclamation, which have since been consolidated into Hopi Tribe v. Donald J. Trump, Case 17-cv-02590 (D.C. Cir. 2017).
From the Carver Colloquium, courtesy of the Rocky Mountain Land Use Institute.
The Legal Debate
The question presented at the Carver Colloquium was: Can one president decide to modify an earlier president’s establishment of a national monument under the Antiquities Act? Professor Mark Squillace, University of Colorado School of Law, argued that presidents lack the authority to abolish or diminish national monuments. Professor James Rasband, Brigham Young University, argued the opposite, that presidents do have the authority to modify the establishment of a national monument.
Relevant to this discussion, the Antiquities Act of 1906 provides:
Sec. 2. That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.
Introductory Statements
Profession Squillace opened the debate by highlighting the language in the Antiquities Act allowing preservation of “objects of historic and scientific interest.” According to Squillace, this is the key aspect of the Act. It was passed to address historians’ concerns about the looting of historic sites and there was pre-adoption discussion about applying the Act only to small sites. Limiting language, though, was not incorporated into the Act, and in Cameron v. United States, 252 U.S. 450 (1920), the Supreme Court upheld the 800,000 acre preservation of the Grand Canyon National Monument because the Grand Canyon, “is the greatest eroded canyon in the United States, if not in the world. . . .“ 252 U.S. at 456. This decision supported later broad interpretations of the scope of the Antiquities Act.
Professor Rasband introduced his counter argument by stating that an important aspect of framing this issue is to understand which branch of the government has authority over public lands, which is Congress. According to Art 4, Sec. 3 of the U.S. Constitution, referred to as the Property Clause: “[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Through the Antiquities Act, Congress delegated some of that authority to the president. The central question is whether this delegation also gives a president the authority to change a national monument. There was no real disagreement between Squillace and Rasband that early cases interpreted the president to have broad authority with respect to establishing monuments, and prior to 2017 there had been 18 modifications to national monuments.
The Debate
Presidents Lack the Authority to Reduce National Monuments.
The Antiquities Act gives a president the authority to establish (or “reserve”) a national monument if it contains objects of historic and scientific interest. The Antiquities Act is silent about the authority to revoke a national monument. This authority was delegated pursuant to Congress’ authority under the Property Clause, so it is important to determine the scope of the delegation. According to Squillace, the law requires a narrow construction of the scope of authority when the authority is provided through a congressional delegation.
In some cases, courts will construe missing authority as implied by the original grant of authority. This is not appropriate, Squillace argued, with the Antiquities Act. Looking at other contemporaneous laws, such as the Pickett Act (43 U.S.C. §141 et seq.(1910)) and the Forest Service Organic Act (16 U.S.C. §551 (1897)), there is evidence that Congress was fully capable of granting a president both the power to take an action and the power to revoke that action. Congress clearly knew how to do this, and in the Antiquities Act, they chose not to grant the power to repeal. Why, one might ask, would Congress only grant one-way power in the establishment of national monuments? Considering what the president was tasked with—setting aside important sites for current and future generations—Congress may have wanted to reserve the power to itself to later decide if a president had gone too far. This rarely happens. Every significant monument has been upheld and Congress has also turned a number of national monuments into national parks.
Additionally, as part of the process to establish the 1976 Federal Land Policy and Management Act (FLPMA, 43 U.S.C. §1701 et seq.), Congress was asked if they wanted to add a repeal provision to the Antiquities Act. This request was based on a study of public land law that recommended rolling all authority with respect to the designation and management of public lands into a single approach. Congress decided not to change the Antiquities Act. It is clear from the legislative history and adopted wording of FLPMA that Congress reserved to itself the ability to withdraw national monuments once they had been designated.
Squillace’s final point was to ask whether a court might consider an argument that a national monument should be resized to the “smallest area compatible with the proper care and management of the objects to be protected. . . .” as required by the Antiquities Act? He thought this could be seen as a vehicle for shrinking or even abolishing national monuments, but it would be a challenging argument for a court to determine. This argument requires the court to weigh—and probe the reasoning of—the discretion of both the president who designated the monument and the president who shrank the monument. Squillace asks how a court reviews Obama’s decision that “this amount of land was necessary to protect the objects,” followed by Trump deciding that only 10 or 15 percent is actually necessary, followed by a later president deciding to enlarge the monument again, and maybe even make it bigger. He notes a similar situation with the Jackson Hole National Monument. President Franklin Roosevelt established the monument in 1943 (now included in Grand Teton National Park) and the State of Wyoming challenged the designation in Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945). The Franke court declined to weigh the opposing sets of facts, holding that while a court would do so in “an ordinary suit,” where the issue is presidential discretion, a judicial probe of the reasoning that underlies the proclamation would be a clear invasion of the legislative and executive domains.
Presidents Have the Authority to Reduce National Monuments.
Professor Rasband opened his counter argument by noting that the existence of some of the larger national monuments actually argues against the Antiquities Act providing a narrow delegation of authority. He then turned to the central question of “where does the president get the authority to reduce the size of a national monument?” Answering this is challenging because it requires one to do the hard task of reading intent into Congressional silence. And while the Antiquities Act provides no specific authority to modify or revoke the establishment of a monument, neither does it include a specific prohibition on a later revocation.
Typically, a president can reverse an earlier presidential executive order. Here, though, where there was a specific delegation of authority, a court must determine how to categorize the president’s subsequent action in light of the authority granted. Where the authority is unclear, according to Rasband, a court should consider if, when the president acted, Congress acquiesced to that action. And under the Antiquities Act, the answer is yes. Presidents have modified monuments 18 times over the life of the Antiquities Act and Congress has acquiesced to each reduction. The reasons supporting the modification do not seem to matter. Some modifications were done to meet the “smallest area” requirement and some were done in response to political constituencies. Notably, the Mount Olympus National Monument (now Olympic National Park in Washington state), established by President Theodore Roosevelt, was reduced to one-half its original size by President Wilson to allow timber production for World War I. And the Grand Canyon National Monument (now Grand Canyon National Park in Arizona), established by President Hoover, was reduced by President Franklin D. Roosevelt in order to appease local ranchers.
Congress had opportunities to reject the presidential modifications, but it did not. Congress could have also changed the Antiquities Act to clarify the grant of authority, but it did not. Not even when it amended the Antiquities Act in 1950 to restrict the creation of any additional national monuments in Wyoming following the creation of the Jackson Hole National Monument, which added the following provision: “(d) Limitation on Extension or Establishment of National Monuments in Wyoming. No extension or establishment of national monuments in Wyoming may be undertaken except by express authorization of Congress.” In the absence of a clear statement by Congress and given the number of modifications that have been permitted, Congress has acquiesced to this use of the power delegated by the Antiquities Act.
Rasband closed by considering how to reconcile the contemporaneous laws, discussed earlier in the debate, that provided a more specific statement about the scope of presidential authority. Using the Pickett Act as an example, he summarized the authority granted as, “a presidential withdrawal (taking the land out of other uses) would remain in force until revoked by the president or an act of Congress.” This, according to Rasband, is simply a statement of the truth. Either the president or Congress could revoke the withdrawal.
The Rebuttals
Squillace was not persuaded. He did not agree that the president’s authority to designate large national monuments also meant that the president has broad powers to modify monuments established by other presidents. He also asserted that the argument that Congressional acquiescence “proves” that there is presidential authority to modify previously established national monuments is incorrect. This theory has not been tested in the courts. The current set of facts is similar to those in United States v. Midwest Oil, 236 U.S. 459 (1915), where the president withdrew public lands from oil exploration in order to stop new oil claims while giving Congress a chance to pass mineral leasing laws. The president did not have specific authority to withdraw the public lands, but claimed the implied authority of the executive office. The U.S. Supreme Court held that the presidential authority included the implied power to protect the public interest by withdrawing public lands. Squillace noted that Congress repealed the concept of implied authority with the adoption of FLPMA in 1976, and there have not been any presidential modifications to national monuments since. Squillace also pointed out that most of the prior modifications, including some of the largest such as Mt. Olympus and the Grand Canyon, were undertaken for political reasons and it would be hard to defend these modifications on “smallest area” compatible concerns.
Rasband agreed with the final point, stating that Professor Squillace is right, earlier reductions were not made for finely honed reasons, but they were made for political constituencies. But the argument cuts the other way, Congress did not do anything to change these changes. The question is “who should have this authority over public lands?” If a broad scope of presidential authority is good for establishing national monuments, why would that change for a decision to reduce a national monument? The authority can only come through Congressional delegation. And although the delegation of authority to reduce a national monument is not provided in the text of the Antiquities Act, it is implied because Congress has acquiesced over time.
The debate was followed by audience questions, many of which focused on where an Antiquities Act challenge might go. Neither side was declared the winner and the discussion was adjourned to the Colloquium recaption.
The Hopi Tribe Case
As predicted, President Trump shrank both the Bears Ears and Grand Staircase-Escalante National Monuments. The Presidential Proclamation Modifying the Bears Ears National Monument (available on the White House website) relied on the “smallest area compatible” requirement and provided a list of reasons for the modification to meet that requirement, including: (1) some of the objects are not unique to the monument, (2) some objects are not of significant scientific or historic interest, (3) many of the objects are not under threat of damage or destruction, and (4) all of the objects will still be under existing federal protection under a number of other federal acts.
The multiple lawsuits challenging the proclamation were filed in the United States District Court in the District of Columbia in 2017 and consolidated into a single lawsuit in January 2018. In fall of 2018, the federal defendants sought to have the cases transferred to the federal court in Utah and then moved to dismiss the cases, both requests were denied. The plaintiffs filed an amended complaint in late 2019 and asked the court for summary judgment (an early ruling that there are no material disputes about the facts and that the party asking for summary judgment is entitled to judgment as a matter of law). Both sides are entitled to file information with the court (briefs) for a consideration of summary judgment and this briefing was just completed. We will return to this case following the court’s ruling.
UPDATE: Did You See the Decision in Atlantic Richfield v. Christian, slip op., 590 U.S. ___ (April 20, 2020)?
In short, the answer to the questions posed on our January Legal Corner was “unless you want to wait until the EPA’s cleanup is complete, the EPA may need to approve your sandbox.” Having just obtained an accessory shed permit from the City of Denver, I’m somewhat concerned about what an EPA sandbox permit application would look like. If you want to read more about the Christian decision, here’s a summary from SCOTUSblog.
Elizabeth Garvin is a land use lawyer and planner and the founding principal of Community ReCode in Denver, Colorado. She is a member of the RMLUI Regional Advisory Board who writes the RMLUI Legal Corner for The Wester Planner. This article is informational only and is not a legal opinion.