I thought this was interesting in an NPR story here..
“More recently, with most large public lands protection bills stalled in Congress, presidents from Bill Clinton to George W. Bush and Barack Obama have used the act as a tool to protect sweeping amounts of federal land mostly in the West.
President Obama’s late hour designation of the Bears Ears National Monument in Utah, for instance, protects more than a million acres — even though the Antiquities Act specifies that monuments designated by a president “in all cases shall be confined to the smallest area compatible.”
It’s this perceived overreach that partly spurred Trump to sign his executive order.
But if, after the review, Trump also decides to bypass Congress and act by executive order to shrink or even nullify any of the monuments, a court challenge is all but guaranteed.
“The Antiquities Act expressly authorizes the President to create a national monument, but it does not authorize a later President to revoke or modify a national monument,” says Prof. Carl Tobias of the University of Richmond School of Law.”
Here’s what Char Miller said about the Antiquities Act here:
What makes the act (16 USC 431-433) so profound is that it grants the president discretionary power to set aside portions of our public lands as national monuments so as to protect those “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….”
Its chief proponents in the late 19th century were historians, scientists, and archaeologists infuriated by the routine pillaging of ancient ruins across the southwest; the rampant desecration of sacred sites.
I’m with the idea that something like Chimney Rock fits this designation and Bears Ears not so much. But my legal question is 1) if someone takes the clause “shall be confined to the smallest area compatible” and makes the case that the designation is illegal itself as violating the Antiquities Act, could it still be “revoked” through the courts, just not through the executive branch(?). Legally, it would not be “revoking”, I guess. It does seem a little odd that one President can do something (at the last hour of his administration) that cannot be undone later by the executive branch. It’s kind of like transferring the decision authority from the executive to the judicial branch. I wonder how many other laws work that way? I’d be interested to see what our readers more familiar with the legal system have to say about this.