March 01, 2018

The missing piece: Presidential action on monuments highlights congressional abdication of responsibility

Lawson Fite

President Trump’s recent revisions to Bears Ears and Grand Staircase/Escalante National Monuments (BENM, GS-ENM) have spurred a heated debate about the extent of executive power under the Antiquities Act of 1906. The president stated, “The Antiquities Act does not give the Federal Government unlimited power to lock up millions of acres of land and water, and it’s time we ended this abusive practice.” Opponents of the presidential action blasted, “The President Stole Your Land.”

Intense debates over our public lands are not new, though the current debate shows that local stakeholders are tremendously important to settling the management of public lands.

It starts with the Property Clause

The Constitution places plenary authority with Congress. Article IV, § 3, cl. 2. The Property Clause states, “[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.” By placing the public land power with Congress, the Constitution created a forum where competing claims could be debated and decided.

The Supreme Court has repeatedly declared Congress’ Property Clause power to be “without limitation.” Kleppe v. New Mexico, 426 U.S. 529, 539 (1976). Therefore, “neither the courts nor the executive agencies, could proceed contrary to an Act of Congress in this congressional area of national power.” United States v. City and County of San Francisco, 310 U.S. 16, 29–30 (1940). When Congress uses this authority wisely, it can produce legislation to power decades of sustainable prosperity, such as the Oregon & California Grant Lands Act of 1937 (O&C Act), discussed below. 43 U.S.C. § 2601. (For further discussion of the O&C Act and the Antiquities Act, see L. Fite, With Cascade-Siskiyou National Monument, the President’s Antiquities Act Authority Reaches a Limit, ABA Public Land and Resources Committee Newsletter, Dec. 2017.)

A sweeping delegation

The Antiquities Act of 1906, 54 U.S.C. § 320301, grants the president sweeping authority to declare “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” to be national monuments, provided that it be “the smallest area compatible” with care and management of the objects to be protected. Given Congress’ plenary authority over public land, the Antiquities Act is a significant transfer of power to the executive.

In keeping with the Antiquities Act’s breadth, presidents traditionally exercised broad authority. Presidential modification of monument boundaries is relatively common, happening 18 times in the twentieth century. In 1915, President Wilson reduced Mount Olympus National Monument (now Olympic National Park) by over 300,000 acres. In 1940, President Franklin Roosevelt significantly reduced parts of the Grand Canyon National Monument. Before President Trump, the last president to reduce a monument, President John F. Kennedy, removed almost 4,000 acres from Bandelier National Monument in May 1963.

Judicial deference, congressional passivity

Litigation against presidential monument actions has a long record of failure—0-for-a hundred years. Cameron v. United States, 252 U.S. 450 (1920), upheld the designation of the Grand Canyon as an “object” to be protected. The D.C. Circuit rejected a slew of monument challenges in Mountain States Legal Foundation v. Bush, 306 F.3d 1132 (D.C. Cir. 2002). When statutes give the president broad discretion, courts have “highlighted the separation of powers concerns that inhere in such circumstances and ha[ve] cautioned that these concerns bar review for abuse of discretion altogether.” Id. at 1135 (D.C. Cir. 2002). Rejecting a challenge to the GS-ENM, the Utah District Court observed that it could not go beyond a “facial review” of whether the president “in fact invoked his powers under the Antiquities Act.” Utah Ass’n of Ctys. v. Bush, 316 F. Supp. 2d 1172, 1183–84 (D. Utah 2004). Further, no court has examined whether a presidential proclamation complies with the requirement that a monument cover the “smallest area compatible.” Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).

Meanwhile, Congress has only amended the Antiquities Act once, in 1950, to preclude “extension or establishment” of further monuments in Wyoming without an Act of Congress. The Federal Land Policy and Management Act of 1976 dances around the Antiquities Act, providing only that the Secretary of the Interior may not “make, modify, or revoke” withdrawals of lands—including for monuments—that are made by Act of Congress. 43 U.S.C. § 1712(j). Opponents of the president’s Utah proclamations have made the implausible claim that this section contains a “drafting error” and that Congress really meant to restrict the president’s power. What it shows is continued deference, congressional and judicial, to the president.

Overruling local stakeholders

In 1996, President Clinton established the 1.7-million-acre GS-ENM in southeast Utah. He was followed 20 years later by President Obama, who designated 1.35 million acres as BENM. President Trump’s actions will modify GS-ENM into three units encompassing about 1 million acres. Proclamation. BENM will be modified into two units totaling about 201,000 acres. Proclamation. The modifications state that the initial designations were in excess of the “smallest area compatible” requirement and that congressional action taken in the interim to protect archaeological and paleontological resources had decreased the area needed to be withdrawn.

Many Utah stakeholders strongly opposed the actions by Presidents Obama and Clinton. A prominent U.S. congressional representative from Utah remarked, “Compare the public support for Bears Ears with the virtually unanimous opposition from the people’s representatives in Utah and San Juan County: The county commission, the state legislature, the local chapter of the Navajo Nation, the governor, and every member of the state’s congressional delegation strenuously opposed the designation.”

The presidents who proclaimed GS-ENM and BENM may have supposed they were settling intractable disputes once and for all. But the same power that allowed them to proclaim these monuments surely allowed the president to make the recent revisions. In four or eight years, the next president may re-proclaim these monuments, only to have them revoked again after the next change of administrations. If management of these lands is to be settled, Congress will have to step in. The administration’s actions have opened a window for discussion of the best way to manage these lands and meet the needs of a variety of stakeholders.

Congress and the executive on the same page in Oregon?

Oregon presents another example of presidential attempts to impose a solution on stakeholders without establishing a local consensus. President Clinton established the Cascade-Siskiyou National Monument in 2000, and President Obama expanded it in 2017. Interior Secretary Zinke has recommended changes to Cascade-Siskiyou, though no action has been taken as of January 2018. Most of the expansion consists of lands already reserved for timber production pursuant to the O&C Act of 1937. In 1940, Interior Secretary Ickes was advised that O&C Lands were beyond the scope of the Antiquities Act: “It is well settled that where Congress has set aside lands for a specific purpose the President is without authority to reserve the lands for another purpose inconsistent with that specified by Congress.” DOI Solicitor’s Opinion M. 30506, Mar. 9, 1940.

No other monument raises the issue of a proclamation void ab initio. An executive action respecting the O&C Act can therefore correct executive overreach while at the same time restoring congressional priority. Ultimately, Congress has an opportunity to reach a management solution that respects the O&C timber mandate while meeting the needs of other stakeholders. And a Court decision upholding the O&C Act would appropriately limit the Antiquities Act authority, employing a narrowing construction to avoid separation of powers concerns and fulfill the purpose of the Property Clause.

Lawson Fite

Lawson Fite is the general counsel of the American Forest Resource Council.