The president should ignore Ryan Zinke’s recommendations and revoke illegally designated or expanded national monuments.
Like a rookie agent in a spy thriller, Secretary of the Interior Ryan Zinke went rogue in responding to President Trump’s executive order to review and make recommendations regarding the legality of two decades of national-monument decrees whereby past presidents, pursuant to the unilateral authority granted them by the Antiquities Act of 1906, designated federal lands as “national monuments” and, like national parks and wilderness areas, put them largely off limits to economic and recreational uses.
Instead of doing as asked, Secretary Zinke recommended decreasing the size of only four of the most blatantly illegal national monuments while leaving the boundaries of all the others standing with mollycoddle language, which will soon get stricken by environmentalists. Worse, he asked that the president do as Clinton and Obama did before him: that is, designate as national monuments federal lands that do not qualify under the Antiquities Act, including, in a surprisingly questionable case of special pleading, one in his home state of Montana. If President Trump does not heed his own pugnacious and not Zinke’s pusillanimous counsel, the matter will be up to the entity entrusted by the Constitution with management of federal lands: Congress. That is as it should be, but whether Congress is up to the task is doubtful, given not just the past nine months but the last 107 years.
On April 26, 2017, President Trump issued his “Presidential Executive Order  on the Review of Designations Under the Antiquities Act,” providing that his secretary of the interior “shall conduct a review of all Presidential designations or expansions of designations under the Antiquities Act made since January 1, 1996.” The review must include monuments that cover over 100,000 acres, either when first designated or after subsequent expansion, as well as those where “the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.” In so doing, the secretary must determine if the designations or expansions were “in accordance with the requirements and original objectives of the [Antiquities] Act,” which are set out in President Trump’s order. He was wise to do so, given the degree to which the law was abused by President Carter, but even more egregiously by President Clinton, and worst of all, by President Obama.
The Antiquities Act of 1906, which all three presidents cited as purported authority for their expansive decrees, was never intended for the purposes to which it was put for the past 21 years. Instead, Congress sought to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,” what the House of Representatives report called “interesting relics [‘ruins’] of prehistoric times” that are “scattered throughout the [American] Southwest [on] public lands.” In the draft legislation, designations were limited to “320 to 640” acres, but the Act provided for “the smallest area compatible with the proper care and management of the objects to be protected.” As early as 1911, however, federal officials resisted efforts by “patriotic and public-spirited citizens” to designate monuments for “scenery alone,” because the Act does “not specify scenery, nor remotely refer to scenery as a possible raison d’être for a public reservation.” (See my book Warriors for the West: Fighting Bureaucrats, Radical Groups, and Liberal Judges on America’s Frontier, pages 66–67, and endnotes.)
Presidents Theodore Roosevelt, Franklin Roosevelt, and Jimmy Carter exceeded their statutory authority in frequent uses of the Act, but their actions, some of which were modified by later presidents or made the subject of congressional designations, occurred before public-land law’s modern era. That began in 1976 with passage of a federal law by which Congress reasserted its exclusive authority over federal land. Thereafter followed decades of laws by which Congress provided for the protection of “wild and scenic rivers,” “wilderness areas,” “endangered or threatened species,” and other concerns, each of which required an act of Congress and signature by the president. Congress left the Antiquities Act standing, theoretically limited to its original purpose, and that is the way it was viewed by Presidents Reagan and George H. W. Bush, who issued no decrees.
Not so Clinton, who among his many Antiquities Act edicts closed one of the world’s best low-sulfur coal deposits — its mining would create 1,000 local jobs and generate $20 million annually — with the Escalante-Grand Staircase National Monument. So passionate was Utah’s opposition to the monument that Clinton deceived political leaders — but not Robert Redford — about his plan until he announced it at Arizona’s Grand Canyon. Today, Garfield County is a self-declared “economic disaster” area.
Likewise, Obama ignored unanimous state and local opposition in Maine and used the Act to designate 87,654 acres purchased for the National Park Service (NPS) as a “seed” for the NPS’s 1988 plan for a 3.2 million–acre park, contrary to a 1998 federal law requiring that Congress authorize all new park-suitability studies. Finally, in a belated Christmas gift to Leonardo DiCaprio and other environmental extremists, Obama thumbed his nose at Utahans with his 1.35 million–acre Bears Ears National Monument in San Juan County. That is not all. Elsewhere, as New Mexican and Reagan-administration alumnus Frank DuBois observes, the Obama administration, instead of designating the “smallest area” possible around “the objects to be protected,” drew a boundary that replicated, for example, a series of wilderness areas Congress refused to designate, and then populated it with purportedly qualifying objects.
Secretary Zinke announced a formal comment period regarding his review on May 5, 2017, which closed on July 10, 2017, with the receipt of 2.8 million comments, both via mail and electronically. Secretary Zinke visited eight monuments in six states and held dozens of meetings with officials, organizations, and locals. His undated report to President Trump was leaked to the Washington Post, which published on it on September 18. To his credit, he acknowledges that past administrations played fast and loose with the law. A sample of his findings:
“Objects are not consistently and clearly defined,” including “geographic areas, ‘viewsheds,’ and ‘ecosystems.’”
“Boundaries mirror[ed] the previously proposed legislative boundaries,” which had been rejected by Congress, “that were not developed with the Act initially in mind.”
“Traditional uses of the land such as grazing, timber production, mining, fishing, hunting, recreation, and other[s] are unnecessarily restricted . . . by designating geographic landscape areas as objects of historic or scientific interest….”
“Certain monuments were designated to prevent economic activity such as grazing, mining, and timber production rather than to protect specific objects.”
Notwithstanding this list of violations, Secretary Zinke failed to recommend that President Trump vacate any of them. That President Trump has the authority to do so is without question. Just as no Congress can bind a future one, no president through a unilateral decree can claim to rule forever. That it will be fought aggressively by environmentalists means only that the solicitor general must defend the revocations before the Supreme Court of the United States. He should; it is the right thing to do. It will restore the rule of law.
Secretary Zinke has failed to recognize that the Antiquities Act long ago outlived its usefulness even while it remains capable of massive and malevolent misapplication.
Secretary Zinke does recommend indeterminate revisions in the boundaries of Utah’s Grand Staircase-Escalante and Bears Ears national monuments — the Beehive State is united in its vociferous opposition — and Oregon’s Cascade-Siskiyou National Monument, the expansion of which is in litigation by affected counties and timber producers. (He also recommended a boundary adjustment for a marine national monument in the Pacific.) Remarkably, he made no such recommendation for a boundary adjustment of the Katahdin Woods and Waters National Monument in Maine despite the vigorous opposition of Governor Paul R. LePage and affected locals. Instead, Zinke recommends only amending the original proclamation “to promote a healthy forest through active timber management.” Environmentalists have already promised a lawsuit to kill even that measly half-loaf. Likewise, as to some of the other 22 designations or expansions reviewed, Zinke recommends that proclamations be amended to remove the worst aspects of the abusive decrees. If this is an attempt to placate environmentalists, who, for example, filed 260,000 comments from Maine, it will not. Remember, the Women’s March against President Trump was cosponsored by the Natural Resources Defense Council.
Sadly, after setting forth the abuses to which the Act has been put over the decades, and cognizant — not only as the secretary of the interior but also as the representative for all of Montana in the U.S. House — of the vast changes in federal land law since 1906, he failed to recognize that the Antiquities Act long ago outlived its usefulness even while it remains capable of massive and malevolent misapplication. Incredibly, instead of calling for its repeal, he recommends its use for a Union Army camp in Kentucky, civil-rights sites throughout the South, and a portion of a multiple-use national forest in his backyard in Montana where an American Indian tribe seeks to prevent the owner of an oil and gas lease issued by the Reagan administration from drilling on his property. (Full disclosure: The outfit I lead represents the man and his company in a lawsuit against the Obama administration and now Secretary Zinke.) Secretary Zinke knows that there are ways to recognize Union Army camps, that the civil-rights site is already a National Historical Landmark, and that decades of environmental and antiquities laws provide a process that ensures that any oil and gas drilling preserves the environment and archeological sites.
President Trump should reject Secretary Zinke’s recommendations; order preparation of new proclamations to revoke illegally designated or expanded monuments, to shrink them to legal size, or to provide them with bullet-proof language that preserves local economic and recreational use; and ask Congress to repeal the Antiquities Act to end forever the threat of mischief against rural communities. If he does not, Congress must fulfill its duty under the Property Clause (“make all needful Rules and Regulations respecting . . . Property belonging to the United States”) and defer no more to the detriment of those who sent them to Washington. Congress has been feckless in performing its duties, not just for the last nine months but ever since 1910 when the Supreme Court ruled that it had acquiesced in its constitutional obligation as to federal lands and could not object to its usurpation by the executive. Let us hope that either President Trump or Congress rises to the occasion.
— William Perry Pendley, an attorney is president of Mountain States Legal Foundation in Denver and the author of Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.
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