Might a ruling in Alaska be a harbinger of efforts to reverse President Trump's breaking up of Grand Staircase-Escalante National Monument?/BLM
Could a ruling late last week out of Alaska be a precursor to the outcome of efforts to reverse President Trump's breaking up of the Grand Staircase-Escalante and Bears Ears national monuments?
U.S. District Judge Sharon Gleason ruled Friday that the president's move to open some 125 million acres of the Arctic and Atlantic oceans to oil and gas leasing, waters that had been closed to such activities by President Obama under the Outer Continental Shelf Lands Act, exceeded his authority. The act, she held, does not give subsequent presidents the authority to rescind withdrawals made by their predecessors.
That same argument, that President Trump exceeded his authority, has been voiced by legal onlookers and groups suing the administration over his orders breaking up the two national monuments in southern Utah.
The staff for U.S. Rep. Rául Grijalva, who chairs the House Natural Resources Committee, said Judge Gleason's ruling "that only Congress can remove presidentially established protective features - (is) a bad sign for Trump’s order shrinking Utah’s Bears Ears and Grand Staircase-Escalante national monuments, which is itself being challenged in multiple federal cases."
“President Trump and his supporters have spent two years insisting he can invent whatever policy he wants, whenever and however it suits him,” Grijalva said Saturday. “The courts said this week that this country is not his sandbox and the environment isn’t his to trash as he pleases. The American people are tired of a lawless president with an appetite for spite and destruction, and these rulings aren’t the last or largest reckoning he’s going to face.”
The debate over exactly what a president's authority is under The Antiquities Act, which Presidents Clinton and Obama used, respectively, to designate Grand Staircase-Escalante and Bears Ears, is not new. Back in 1938, U.S. Attorney General Homer Cummings said presidents did not have the authority under the Antiquities Act to abolish national monuments.
More recently, involving the debate over Bears Ears and Grand Staircase-Escalante, five attorneys (Robert Rosenbaum, Andrew Shipe, Lindsey Beckett, Andrew Treaster, and Jamen Tyler) from Arnold & Porter Kaye Scholer have noted that when the Federal Land Policy and Management Act was adopted in 1976, "the House committee explained that that law 'would also specially reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act."
Furthermore, they've argued that a president has no authority through either the Constitution or an act of Congress to rise above Congress's authority under the Property Clause, "which provides that '[t]he Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.'"
That authority under Congress was underscored by the fact that national monuments are part of the National Park System, they went on, noting that "(I)n the 1978 'Redwood Amendment,' Congress mandated that the protection, management, and administration of the System units shall be conducted in light of the high public value and integrity of the System and shall not be exercised in derogation of the values and purposes for which the System units have been established, except as directly and specifically provided by Congress," they wrote.
And yet, John Yoo and Todd Gaziano of the American Enterprise Institute maintain that they "believe a president’s discretion to change monument boundaries is without limit, but even if that is not so, his power to significantly change monument boundaries is at its height if the original designation was unreasonably large under the facts as they existed then or based on changed circumstances."
If it was determined that a president could not overturn a monument designation entirely, they added, surely a president could reduce the size of a monument. To back up that contention, they cite National Park Service records noting that:
- President Eisenhower reduced the reservation for Great Sand Dunes National Monument by 25 percent. (He reduced the original 35,528-acre monument by a net 8,920 acres.)
- President Truman diminished the reservation for Santa Rosa Island National Monument by almost half. (The original 9,500-acre reservation by Franklin Roosevelt was diminished by 4,700 acres.)
- Presidents Taft, Wilson, and Coolidge collectively reduced the reservation for Mount Olympus by almost half, the largest by President Wilson in 1915 (cutting 313,280 acres from the original 639,200-acre monument).
- The largest percentage reduction was by President Taft in 1912 to his own prior reservation in 1909 for Navajo National Monument. (His elimination of 320 acres from the original 360-acre reservation was an 89 percent reduction.)
Those actions, however, all were made before FLMPA was adopted in 1976 and the Redwood Act was passed by Congress in 1978.
Stay tuned.
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Comments
Congress' pasage of FLMPA removed the authority of presidents to reduce monuments. Wilson's massive reduction of Mount Olympus happened 5 years before the supreme Courts 1920 ruling in Cameron v Us which upheld the Antiquities Act legality and held that large monuments were legal. The courts have repeatedly said that a monument can be large so long as it contains objects of historic and/or scientific importance. Bear Ears contains both in huge numbers, Indian ruins and artifacts for historic purposes, and dinosaur bones and wildlife habitat for scientific purposes.
There havee been hundreeds of legal challenges to monuments, and " Its too large!' is a frequent challenge point. The courts have never accepted that "its too big" as a valid basis for changing a monument, and have rejected all challenges to the establishment of monuments. . Trumps claim that ' Obama created too large an area" is right in line with similar rejected claims. Monuments far larger than Bears Ears have been upheld by the courts, Wrangell St Elias was 11 million acres when Carter created it in 1978, the courts held in 1980 he had been within his authority to create all 17 Alaska monuments at the sizes he designated them.
The final acreage of Bears Ears - around 1.35 million acres- roughly followed the lines of Rob Bishops proposed Public Land Initiative which would have covered 1.4 million acres. the tribes had pushed for 1.9 million, the size of Grand Staircase Escalante. Rather than being too large, it is likely that the monuments initial size is too small and needs to be expanded. Under a 1976 Supreme Court ruling in Cappaert vs US, the Supremes ruled the Antiquities Act is not limited to Indian ruins artifacts or their immediate surroundings, that a wide variety of areas can be conserved for historic and scioentific purposes, and ruled that expansions of monuments are permitted.
Section 204(j) of FLMPA bars the Interior secretary from making any changes to existing monuments, in other words, no shrinking monuments or recomending they be shrunk. This was put in under the mistaken impression that SOI can create or change monuments. Only the president can create monuments. The SOI only makes recomendations to the president, but in precluding the SOI from recomending reductions to monuments, Congress is also barring the president from reducing monuments, as the SOI has to recommend the action on monuments first before the president acts. In taking reductions off the table, Congress is preventing the president from shrinking monuments himself and reserving that to Congress, and Congress alone.
Zinke in recommending reductions to 4 monuments and changes to several others, violated FLMPA, and rendered any changes Trump acted on as null and void. Trump can create new monuments, at any size or number he wants. He can add on to existing monuments, again as large or as small an addittion as he likes. But once created, only Congress can make a monument smaller, and since 1976 they've only reduced the size of 1 monument, slicing 315 acres off of Craters of the Moon in 1996, a minor adjustment to the-then 54000 acre monument. Clinton added 660000 acres to Craters in 2000, bringing the monument to over 700000 acres in size.
in 2004 the courts ruled that once created the borders of a monument are permanent, and may not be changed, save by Congress. this was a recognition by the Bush administration that its hands were tied regarding monuments created before taking office, and Bush dropped any plans to change some of Clinton;s monuments.
It should be noted than neither Bears Ears National Monument nor Staircase Escalante National Monument are in the National Park System or administered by the National Park Service.