On April 26, 2017, President Trump issued an Executive Order (“EO”), “Review of Designations under the Antiquities Act,” to address what he called a “massive federal land grab.” The EO directs Interior Secretary Zinke to review all monument designations made under the Antiquities Act since 1996 that either exceed 100,000 acres or were “made without adequate public outreach and coordination” and make recommendations on legislative or administrative changes. The following week, on May 2, 2017, the House Natural Resources Subcommittee on Federal Lands held an oversight hearing, “Examining the Consequences of Executive Branch Overreach of the Antiquities Act,” to hear from witnesses in states with “widely opposed designations.” Why all the high-level interest in a 111 year-old law?

We last blogged on this topic in October 2015 to highlight how President Obama was using the Act’s authority for his conservation legacy and to note that Congress was reacting by considering legislation to limit the Act. President Obama used his last year in office to create or expand 15 monuments from the expansion of the enormous Hawaiian Papahānaumokuākea Marine National Monument (283.4 million acres) to the designation of the tiny Stonewall National Monument (0.12 acre) in New York and, in late December, the Utah Bears Ears National Monument (1.35 million acres). In total, as was described in the Subcommittee Hearing memo, President Obama used the Act 34 times “to lock up 553,599,880 acres of land and water as national monuments” which represents “66% of all monuments ever designated.” See list in CRS, “National Monuments of the Antiquities Act” App. C (Jan. 30, 2017).

The Bears Ears designation particularly inflamed the Chair of the House Natural Resources Committee, Rep. Rob Bishop (R-UT) and it was specifically mentioned in the EO. The EO directs the Secretary “to determine whether each designation or expansion conforms” to the “requirements” and “original objectives” of the Act and “appropriately balances” protections with other uses of federal lands and the interests of the surrounding communities. The EO directs Secretary Zinke, before the end of June, to provide an interim report to the White House with respect to the establishment of Bears Ears “and such other designations” with a final report due on August 24, 2017.

Congress created this expansive presidential authority when it delegated a portion of its constitutional Property Clause “power to dispose of and make all Needful Rules and Regulations respecting the . . . Property belonging to the United States” to the President in the Antiquities Act of 1906 (54 U.S.C. § 320301). The Act authorizes the President “in the President’s discretion” to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” located on Federal lands “to be national monuments” and further directs, “[t]he limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

President Theodore Roosevelt first exercised this authority to set aside Devils Tower in Wyoming and went on to use the Act 17 more times including to designate the 808,000-acre Grand Canyon National Monument. The designation of Grand Canyon was challenged by a mining claimant who argued that the President was without authority to make the designation. The U.S. Supreme Court in rejecting the challenge held that the Act “empowered him to establish reserves embracing ‘objects of historic or scientific interest’ . . . and [the Grand Canyon] is the greatest eroded canyon in the United States, if not the world . . . [it] is regarded as one of the natural wonders . . . .” Cameron v. United States, 252 US 450, 455-56 (1920).

Courts have generally deferred to the President’s discretion in establishing a monument. In Wyoming v. Franke, 58 F.Supp. 890 (D. Wyo. 1945), a court upheld President Roosevelt’s designation of Jackson Hole National Monument after finding evidence of “objects of historic or scientific interest” in the area. In Cappaert v. United States, 426 U.S. 128, 141-42 (1976), the Court affirmed a reservation of water rights for the Death Valley Monument and rejected the argument that the designation was not authorized because there were no archeological features. In 1978, an Alaska court rejected the argument that Interior’s role assisting in the designation triggered NEPA compliance. Alaska v. Carter, 462 F.Supp. 1155, 1160 (D. Alaska 1978). In a challenge to six of Clinton’s monuments, the D.C. Circuit upheld a dismissal of a complaint alleging the designations were unconstitutional and exceeded the authority of the Act. Mt. States Legal Found. v. Bush, 306 F.3d 1132, 1135 (D.C. Cir. 2002). In Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002), the D.C. Circuit rejected a claim that the monument’s size did not conform to the “smallest area” statutory criteria.

Congress, which retains authority to designate, abolish or diminish monuments or alter the terms of the Antiquities Act, has taken limited steps to use its authority to limit Presidential monument making. On two occasions, Congress has limited the President’s authority under the Act: in the 1970s Congress decreed that in Alaska no monument greater than 5,000 acres can be designated without congressional approval and in Wyoming in 1950 decreed no monuments are allowed to be designated in the State. Most frequently, Congress has acted to raise the status of monuments by legislating them into national parks. Indeed, 50% of U.S. national parks started as presidentially designated monuments.

The open question, which is raised by the Trump EO, is what authority does a sitting President have to alter a previously designated monument? Isn’t a presidential proclamation designating a monument akin to an executive order that can be modified or rescinded by a new President? There is a distinction between an executive order – the exercise of inherent executive authority – and a monument designation – the exercise of delegated congressional authority by statute. There is no case law considering this question but the issue was raised in 1938 when President Roosevelt wanted to abolish the Castle-Pinchney National Monument in South Carolina. His Attorney General advised: “The statute does not in terms authorize the President to abolish national monuments, and no other statute containing such authority has been suggested. If the President has such authority, therefore, it exists by implication.” 39 Op. Atty Gen. 785, 187 (1938). President Roosevelt declined to test the waters and Congress later abolished the monument.

The same 1938 Attorney General Opinion contemplates the reduction of monuments to their “smallest area” but cautions “it does not follow from his power so to confine that area that he has the power to abolish a monument entirely.” Id. at 188. Presidents have reduced the size of monuments, but no President has done so since President Kennedy. Secretary Zinke’s final report in August may recommend administrative changes to designated monuments that could result in a court decision on this open question of the limits of the Presidential authority to make, reduce and unmake monuments.