Understanding the Legalities of National Monument Designation

Chimney Rock National Monument, San Juan National Forest, Colorado

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.

19 Comments

  1. Why would you think “Bears Ears not so much”, Sharon? There is zero legal basis for that idea — none at all.. Applications of the Antiquities Act have repeatedly been upheld by courts going all the way to the Supreme Court precisely because the law’s plain language does not in any way place an upper limit on the size of a national monument. This is incredibly-settled law with a mound of Supreme Court precedent behind it. Every time someone sues, courts have said the exact same thing: the law doesn’t say a monument can’t be bigger than X, therefore there is no basis to say a monument can’t be bigger than X.

    No president has ever attempted to unilaterallly undo a national monument, and the law’s plain language doesn’t permit such a thing. This is another example of Trump attempting to destroy long-held American ideals about our public lands for the personal profit of himself and his billionaire buddies.

    • “This is another example of Trump attempting to destroy long-held American ideals about our public lands for the personal profit of himself and his billionaire buddies.”
      ===========

      Long held American ideals ?? Last thing I remember on this subject from watching your news reports from over here in Sweden, the ideals of the Utah people were never consulted. And as far as finger pointing and te blame game for all that is considered ruin ? I’m not at all political, nor have I ever voted for any country’s political parties, what I do know is that these Eco-Activists are hardly shining examples of any type of Land Stewardship.

      http://timeless-environments.blogspot.se/2017/03/eco-activism-inspiring-mankindt-to.html

    • Travis – I’m not a lawyer of course. But when I look at two of those monuments- Grand Staircase and Bears Ears- from my experience walking, driving and camping in them- they don’t look to me as if they are the smallest area that will protect:
      “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….”

      I’m sure it’s probably more complicated than that.

      And please don’t blame Trump for that.. he could probably care less. You probably need to look no farther than Zinke- perhaps paying attention to what the elected officials in Utah are thinking.

      • Sharon,

        And what is your objective standard for saying it isn’t “the smallest area compatible”? There isn’t one, which is precisely the point. The law doesn’t contain an objective standard, and I would suggest that it wouldn’t be possible to “objectively” determine what is and isn’t the “smallest area compatible.” The law leaves it purely to the President’s discretion, and courts are not in the business of substituting their judgment for the president’s, in areas where the law is explicitly discretionary. As with the Taylor Grazing Act, one can say that the Antiquities Act “breathes discretion at every pore.”

  2. Your daily light SCOTUS reading:

    United States v. California, 436 U.S. 32 (1978)
    https://supreme.justia.com/cases/federal/us/436/32/case.html

    Cappaert v. United States, 426 U.S. 128 (1976)
    https://supreme.justia.com/cases/federal/us/426/128/

    Cameron v. United States, 252 U.S. 450 (1920)
    https://supreme.justia.com/cases/federal/us/252/450/case.html

    The defendants insist that the monument reserve should be disregarded on the ground that there was no authority for its creation. To this we cannot assent. The act under which the President proceeded empowered him to establish reserves embracing “objects of historic or scientific interest.” The Grand Canyon, as stated in his proclamation, “is an object of unusual scientific interest.”

    Also see Tulare County v. Bush, 306 F.3d 1138 (2002), in the DC Circuit.
    https://scholar.google.com/scholar_case?case=11074830680367238819&hl=en&as_sdt=6&as_vis=1&oi=scholarr

    Insofar as Tulare County alleges that the Monument includes too much land, i.e., that the President abused his discretion by designating more land than is necessary to protect the specific objects of interest, Tulare County does not make the factual allegations sufficient to support its claims. This is particularly so as its claim that the Proclamation covered too much land is dependent on the proposition that parts of the Monument lack scientific or historical value, an issue on which Tulare County made no factual allegations.

  3. First, the Antiquities Act is now codified at 54 USC §§320301 – 320303.

    The answer to your question is that yes, it could be revoked through the judiciary, and attempts have been made to do that. The courts, however, have thus far seen fit to grant extraordinary deference to the executive on this, and have declined to void presidential national monument designations.

    For all the public statements, we really don’t know whether the President can unilaterally rescind a former President’s designation of a national monument, because no President has ever tried to do so. Should a President go down that path, it’s something that will certainly be tested through the judiciary. There’s more political capital to be lost there than there is to be gained. Precedent for one President revoking another’s executive orders exists, but does not provide a particularly useful indicator.

    The more tried and true approach is to go through the Congress, where national monuments have been terminated, changed into other federal protective classifications, such as national parks, or otherwise modified. There appears to be adequate political will for this more tested approach, and the executive includes “legislative proposals” as one of the primary remedy options.

    • Thanks, Norman, this is all pretty confusing to the uninitiated- trying to parse through all the news stories..- I thought I read somewhere that in the past, another president couldn’t get rid of the designation, but had changed the boundaries?

      That does seem like extraordinary deference to me.. I wonder if there’s a public document somewhere that explicitly states why they thought it was the “smallest area needed” (for Bears Ears).

      • One could ask a similar question about the Giant Sequoia National Monument. Why do we need to designate over 300,000 acres for the scattered tiny groves of Giant Sequoias? I think it was an experiment to see if they do could more management than they had been doing, under a different designation. The Forest Service dearly needed to be able to put up thinning projects, to help keep the one SoCal mill running at least at minimum profitability. Sierra Forest Products is the only mill serving the Sierra, Sequoia, San Bernardino, Angeles and Los Padres National Forests.

        • That’s interesting. In SW Colorado and Utah the idea, I think, is “less management”(still trying to figure out the difference between what is said in the press and what is really going on). So did the Monument status experiment succeed?

          • I don’t think there is much coming out of there but, it appears the mill is still hanging by a thread. I did see some opposition to a Roadside Hazard Tree projects many years back, filled with misdirection and rhetoric. Hey, larger trees are more likely to be hazards, with more rot and damage, especially from when the road was built.

  4. Utah Association of Counties v. Bush (Utah District Court, 2004) – upholding the designation of Grand Staircase-Escalante
    https://scholar.google.com/scholar_case?case=14478392481945137735&hl=en&as_sdt=6&as_vis=1&oi=scholarr

    The Proclamation of which plaintiffs complain speaks in detail of the Monument’s natural and archeological resources and indicates that the designated area is the smallest consistent with the protection of those resources. The language of the Proclamation clearly indicates that the President considered the principles that Congress required him to consider: he used his discretion in designating objects of scientific or historic value, and used his discretion in setting aside the smallest area necessary to protect those objects. It is evident from the language of the Proclamation that the President exercised the discretion lawfully delegated to him by Congress under the Antiquities Act, and that finding demarcates the outer limit of judicial review.

  5. I’ll begin with a disclaimer: I am not an attorney. But I was involved in several of the legal challenges to the Grand Staircase-Escalante National Monument. I’ll also say I probably have a different perspective than Travis, but maybe could agree with him regarding some of the key rulings from the courts.

    Kudo’s to Travis for providing a link to a district court ruling on the GSENM. (It might be worthwhile to look up the Supreme Court’s upholding of the Clinton era monuments for a more relevant discussion.)

    The district court’s summary contains what I believe is the most relevant point regarding any potential legal challenge to Bears Ears and/or to Sharon’s opinion that the “smallest area compatible” provision was exceeded. Essentially: If the President says its the smallest area compatible — then its not our problem. (See first para under section 4.)

    Congress gave the President a broad grant of its authority over public lands. So if folks believe the President abused that authority, they must seek redress from Congress, not the Courts.

    Separation of powers, I suppose. In any event, the decision is worthwhile reading.

    I had the displeasure of “lurking” on some of the provisions of the Bears Ears designation, including its boundaries. I think such Monument designations are perhaps the most anti-democratic things that can happen in American politics. Shame on all of us. We have got to figure out a better way.

    • Brian- That makes some sense to me, but I wonder how courts decide when to defer to the agencies/the Prez and when not? We spend a lot of time on this blog looking at court cases in which the court chose not to defer to the agency. Is it because it’s the President in this case, and not an agency? Is it something specific about the statute (that seems to be implied in the circuit court decision above).

      Perhaps of all the land use legislation and land use planning legislation there is only this one in which the Prez has this kind of authority?

      Maybe some of the legal folks here can shed some light on this…and thank you so much for helping us understand how this works.

    • If Utah’s Republican politicians hadn’t been so stubbornly opposed to significant protections for the area, and if the Republican Party in general wasn’t ideologically committed to selling off our public lands to the highest bidder, perhaps the designation wouldn’t have been necessary. But when you elect right-wing libertarian ideologues who want to drown the government in a bathtub and strip-mine America’s birthright, you’re not going to be able to reach a pragmatic compromise.

  6. “I wonder how courts decide when to defer to the agencies/the Prez and when not?” There is a lot of case law regarding deference to federal agencies, usually in the context of how their regulations interpret statutes. An interesting question whether/how that would work for presidential proclamations authorized by the Antiquities Act, and the court cases cited here don’t seem to address that specifically. Judges will usually summarize how that works in their opinion; here’s one:

    Under the APA, the Court decides “all relevant questions of law” and interprets
    statutory provisions. 5 U.S.C. § 706. “If the intent of Congress is clear,” the Court must
    give effect to that “unambiguously expressed intent.” Chevron, U.S.A., Inc. v. Natural
    Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If the statute is ambiguous, the
    Court must determine how much deference to give to an administrative interpretation of
    the statute. Nw. Ecosystem Alliance, 475 F.3d at 1141.
    When Chevron deference is applicable, an agency’s construction of
    am ambiguous statute must be given controlling effect so long as it is reasonable.
    Christensen v. Harris Cnty., 529 U.S. 576, 586-87 (2000). An agency’s statutory
    construction may be found unreasonable if it “ignores the plain language of the statute,”
    renders statutory language “superfluous,” or “frustrate[s] the policy Congress sought to
    implement” in the statute. Pac. Nw. Generating Coop v. Dep’t of Energy, 580 F.3d 792,
    806, 812 (9th Cir. 2009).

  7. “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…. I wonder how many other laws work that way?”

    Here’s another example:
    “Environmental groups and Alaska Native Americans say President Donald Trump has exceeded his authority by reversing the ban on drilling in the Arctic and Atlantic Oceans, and they’re suing to stop him. The permanent ban, instituted by President Barack Obama, applies to 31 biologically rich, deep-water canyons off the Atlantic coast and 120 million acres of ocean floor in the Arctic. According to Erik Grafe, a staff attorney with the law firm Earthjustice, the law that made it possible to put a permanent ban in place has no provision that allows the ban to be lifted.

    “The statute authorizes presidents to withdraw areas from oil and gas leasing in the outer continental shelf,” he states. “It does not authorize them to undo withdrawals.”

    http://www.publicnewsservice.org/2017-05-04/endangered-species-and-wildlife/lawsuit-challenges-reversal-of-offshore-drilling-bans/a57559-1

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