Monumental Power: Can Past Proclamations under the Antiquities Act Be Trumped?

By Murdock, John | Texas Review of Law & Politics, Spring 2018 | Go to article overview

Monumental Power: Can Past Proclamations under the Antiquities Act Be Trumped?


Murdock, John, Texas Review of Law & Politics


Introduction

President William J. Clinton stood on the rim of the Grand Canyon on September 18, 1996, and exercised one of the most sweeping unilateral powers available to a chief executive. With the mere stroke of a pen-and without the requirement of any congressional approval, formal studies, or public participation- President Clinton radically transformed the management for some 1,700,000 acres of land through his authority under the Antiquities Act.1 While the backdrop was beautiful, the impacted area was actually hundreds of miles away in utah. There, many locals and their political representatives felt blindsided and took the creation of the Grand Staircase-Escalante National Monument as an unwelcome attack on their way of life.2

In contrast, on December 4, 2017, President Donald J. Trump was warmly welcomed to the utah State Capitol where, surrounded by other elected officials, he signed a proclamation reducing the size of the same monument by approximately 700,000 acres.3 He also reduced the size of the Bears Ears National Monument, created by President Barack obama in the final days of his presidency, even more dramatically.4 That monument, also located in utah, went from approximately 1,350,000 acres to about 202,000, or around 15% of its previous size.5

While the dignitaries surrounding Trump clapped, not all in utah were smiling. Within hours, a series of lawsuits were filed in Washington, D.C. by environmental groups, Native Americans, paleontologists, archaeologists, and even Patagonia, the maker of outdoor apparel.6 Those lawsuits pose a basic question: Does the Antiquities Act grant a president the power to rescind or modify a predecessor's prior proclamation establishing a national monument?

In other words, did Congress hand the chief executive a land management toolbox for tinkering or just a one-way ratchet to establish monuments but make no changes thereafter? It may seem surprising that such a basic question regarding a statute enacted in 1906 has not been adjudicated before, but that is indeed the case. Despite the overconfident predictions from professors and pundits on both sides, the question is complex and the answer unclear.

In addition to the lawsuits filed in December, there is also ongoing litigation at the district-court level that pre-dates President Trump's proclamations and directly challenges other monuments proclaimed by President Obama.7 Real legal risks exist all around-the kinds of risks that could set the stage for a compromise. Compromises are rare in this polarized time and may well be unobtainable here, but such could bring needed reform to a sometimes beneficial statute, the use of which has nevertheless strayed far from its original purpose.

Before proceeding further, it should be noted that national monument designations tend to produce hyperbolic responses on both ends of the political spectrum. President Trump and some conservatives have described a monument designation as a federal "land grab."8 Some liberals offer a similar-sounding complaint, if for different reasons. Immediately after President Trump issued his December proclamations, Patagonia dramatically told visitors to its website that "The President Just Stole Your Land."9

Both reactions are flawed. Creating a national monument does not federalize private land, nor does modifying one defederalize public lands. The acreage in a national monument is federally owned before it becomes a monument, and it remains federally owned after monument status is removed. Still, there is a significant difference between "multiple-use" public lands, potentially open to everything from dirt bikes to gold mines, and the quasi-wilderness status of a national monument.10 There can also be indirect impacts on adjoining private lands, especially inholdings that are completely surrounded by public land.11

The direction of public-lands management is important largely because the federal government owns a lot of land, especially in the West. …

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