Can a President Modify a Monument?

From Regulatory Review: “Can the President Modify a Monument?

Professor John Ruple argues that “Congress never granted the President authority to reduce a monument’s size. Neither the Act itself nor any legislative hearings leading to the Act’s passage mention altering a monument once created.”

Much of the article focuses on Ruple’s stance. But the last paragraph:

“Other scholars, such as Jonathan Wood of the Pacific Legal Foundation, contend that an argument like Ruple’s is too formalistic and would have drastic implications for the administrative state. Wood argues that a President commonly amends orders and rules put in place by a predecessor. Not allowing this, Wood argues, would make any one President too powerful.”

We’ve discussed this issue in the past, such as here:

Questions about FS national monument shrinkage


14 thoughts on “Can a President Modify a Monument?”

  1. Jonathan Wood and the Pacific Legal Foundation uses (or has used) money from the Koch Brothers, Philip Morris, Exxon Mobil and resource extraction industries to try and dismantle America’s public lands, wildlife and National Parks legacy….and to support the use of DDT.

    According to Guidestar, the Pacific Legal Foundation currently has assets of nearly $60,000,000.00. The president and CEO of the Pacific Legal Foundation has an annual salary of over $400,000.

    But hey, let’s start a whole conspiracy theory about a small non-profit environmental group that has a budget of $50,000 and just wants to save some trees and make sure the government follows our nation’s laws.

  2. Matthew, what conspiracy theory? I posted this item on monuments for discussion. No ulterior motives. Can a President Modify a Monument? — a legitimate legal question.

    • Hi Steve, Sorry I wasn’t clearer. Numerous times on this blog over many years a number of regular commenter have tried to discredit very small non-profit forest protection groups simply by claiming how much money they have. In this case, taking a page from their book, I figured it was appropriate to point out that the Pacific Legal Foundation is a $60 million right-wing organization funded by the like of the koch Brothers, Philip Morris and Exxon Mobil. Thanks for letting me clear that up.

        • I may add more to the discussion more, but feel like I already have by pointing out the funding and agenda of one of the people and organization’s commenting RE: “Can a President Modify a Monument?”.

  3. Matthew, I feel like you and I probably agree on most things, but man, it’s hard to get behind anything you say with your consistently dooshy delivery.

    • Fair enough George Washington Hayduke. I’m a sucker for responding in the same way that other folks on this blog have in their attempt to rip apart science or opinions they disagree with. Anyone is welcome to go through the history of this blog and see the countless times that people like Dr. William Baker, Dr. Beverly Law, Dr. Chad Hanson, Mike Garrity, Dr. John Talberth, Dr. Daniel Donato and host of other scientists, researchers and forest protection activists have been dragged through the mud…with a lot less to go on than the funding facts I’ve pointed out about Jonathan Wood of the Pacific Legal Foundation. Perhaps I will try harder, but I admit this is a major weakness of mine.

      I do believe that pointing out the fact that the commentary from Jonathan Wood of the Pacific Legal Foundation comes from a long-standing, very well-funded agenda of ripping apart America’s public lands legacy is relevant to the discussion about PLF’s opinion about National Monuments.

  4. I believe this question is being litigated… I am no longer amazed at how people (of good faith?) can reach polar opposite positions given the same facts (e.g. SCOTUS). Though the language of the Antiquities Act is clear, and Congress “interpretation” of FLPMA to Secy of Interior explicit, Wood relies on inference to make his point.
    A question worth asking: Is Wood truly a scholar? Per Koehler, Wood seems more a tool.

  5. It is being litigated. Interestingly, there was a fairly recent case involving withdrawals under the Outer Continental Shelf Lands Act, which raised essentially the same issue: whether a subsequent president could modify prior withdrawals.

    “At issue in this case is the meaning of Section 12(a) of OCSLA: “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”[35] Plaintiffs maintain that this text only authorizes a President to withdraw lands from disposition; it does not authorize a President to revoke a prior withdrawal. Plaintiffs assert that under the Property Clause of the U.S. Constitution, the authority to revoke a prior withdrawal was not delegated by this statute to the President and thus remains vested solely with Congress.[36]” (League of Conservation Voters v. Trump, 3/29/19)

    The Alaska Federal District Court held: “The text of Section 12(a) indicates that Congress expressly granted to the President the authority to withdraw unleased lands from the OCS; but the statute does not expressly grant to the President the authority to revoke prior withdrawals.” The language of the Antiquities Act is not identical, but is arguably even more clear in this regard.

    • The Antiquities Act gives presidents discretion in establishing a monument: “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.” When President Obama enlarged the enlargement of the Cascade-Siskiyou National Monument, his proclamation stated that this was justified because “The boundaries described on the accompanying map are confined to the smallest area compatible with the proper care and management of the objects to be protected.”

      If the science or the facts on the ground indicated that a SMALLER area was necessary for the proper care and management of the objects to be protected, would he/she not be able to use that same discretion?

      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…

  6. If the facts haven’t changed, this would mean arguing that the previous president improperly used his executive power, rather than claiming authority under the Antiquities Act to modify a monument, though I guess the effect would be the same. I think the inevitable lawsuit would still have to determine the authority for a president to undo a reservation, and I don’t think it would come from the Antiquities Act. I don’t think the authority to “reserve” can be applied to an area that was already reserved nor could it be construed to “unreserve” such areas. (Of course if a private plaintiff were to convince a court to remove the designation, then a new designation could be made.) Even if the facts have changed, the answer could still be that Congress only conferred authority to the president to reserve.

    • “… Congress only conferred authority to the president to reserve.”

      This would seem to be consistent, to me. I’d also hope that only Congress could modify (reduce) a Monument. I would also hope that there would be some sort of limitation on how much can be set aside. What is there to stop a future Democrat from taking 25 Ranger Districts and turning them all into National Monuments, eliminating some commercial activities?

      • Legally? Only that the districts be of “historic or scientific interest,” and “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…” That’s a lot of discretion. But politically I think things would have to change a lot first, since Congress could reverse any designation, and could repeal or limit the Antiquities Act if it is abused.

        • Certainly, most National Forests have enough “Cultural Resources” to set aside huge areas. For example, in the Sierra Nevada, the mid-elevations are full of historic and pre-historic sites. I’ll bet it is more of the same in eastern National Forests.

          I do think that many lawmakers don’t want to escalate things to that level, fearing some sort of “Mutual Assured Destruction” of the nation’s protected antiquities.


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