THE FUTURE OF THE ANTIQUITIES ACT AND BEARS EARS

The Future of the Antiquities Act and Bears Ears- Part III

Author: Seth Todd, 3L Member

Supporting President Trump’s Actions Involving Bears Ears

The Bears Ears battle rages on. I have previously covered the conflict surrounding President Trump’s reduction of Bears Ears and the arguments that the opposition has made trying to get the order over turned. In this final blog of the three-part series, I will cover the arguments supporting the President’s decision to reduce Bears Ears. The President claimed the reason behind his actions were to reduce federal overreach, and give the land back to the people. Pundits focus on three points when arguing in favor of the President’s decision. The first point is that President Obama created Bears Ears through the use of an Executive Order, and therefore Trump has the power to override it. The second is the literal text of the Antiquities Act. The third and final argument is that since it is not expressly granted, that it is an implied power. I will take each in turn.

The first argument is that Presidents can overturn executive orders issued by past Presidents. President Obama issued the executive order protecting Bears Ears and set the parameters of that protection. The executive order satisfied the Antiquities Act as a proclamation, which created the federal protection of the land. [1] Executive orders are commonly overturned by future Presidents. [2] This would seem to give President Trump the inherent authority to overturn President Obama’s executive order, therefore removing the protection of Bears Ears by the federal government. However, the sticky issue arises in the text of the Antiquities Act. Nowhere in the act does it stake that a President has the power to overturn protection of land, even if the protection arises from an executive order. [3] Since there is no previous cases on such an action, this will be an issue of first impression for the courts. President Trump does have the power to revoke the executive order, but will the protection of the land still be left in place?

Proponents of President’s Trump actions actually point to the text of the Antiquities Act in support of the reduction. The act states “The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”.[4] Past presidents have used this clause to reduce federal lands, such as President Kennedy when reducing the Bandelier National Monument by nearly 4,000 acres. [5] An Attorney General opinion from 1938 actual supports the reduction of monuments to “the smallest area possible” even though they may not have the right to abolish the monument. [6]The opinion states,

While the President from time to time has diminished the area of national monuments

established under the Antiquities Act by removing or excluding lands therefrom, under

that part of the act which provides that the limits of the monuments “in all cases shall be

confined to the smallest area compatible with the proper care and management of the

objects to be protected,” it does not follow from his power so to confine that area that he has the power to abolish a monument entirely.”[7]

While the question remains on whether he may abolish the monument, it seems President Trump does have some authority on his side toward at least a reduction.

Secretary of Interior Zinke has given support to the reduction stating the President has the authority because “qualifying objects within the monument can be identified and reasonably segregated”. [8] Since the objects can be targeted, then a reduction to the smallest area possible would be within the bounds of the text of the Antiquities Act. If the Trump administration has legitimate proof backing up that the size should be reduced, then this is their strongest argument and could withstand a judicial challenge.

The last and what I believe to be the weakest argument is that since the power to reduce or abolish monuments is not mentioned, then the president has the inherent authority. Since there seems to be no evidence that Congress expressly attempted to withhold the power to revoke national monuments, then the President should have the authority to do so. [9] The notion behind this is simple, where the executive can use a discretionary power to create something, they can also use that discretionary power to take it away, unless otherwise stated. [10] Since this is a matter of first impression, we will not know if this type of thinking can withstand a judicial challenge. It all depends on the interpretation of the courts and how they see the delegation of power to the executive through the Antiquities Act.

President Trump has three arguments going forward to try and persuade the judicial branch that his reduction of Bears Ears was within his power. We may guess at which is the strongest vs. the weakest, however we will not know until the issue has been presented to the courts. I hope you have enjoyed this mini-series on the reduction of Bears Ears, and the coverage of both sides of the arguments going forward. This will be something to watch going forward, as it will set the precedent for future presidents. If Trump is allowed to use the Antiquities Act, then this may become a tool to reduce the size of monuments and therefore reduce spending on federal maintenance of lands. If the judicial process rules against the Trump Administration, then those in favor of more conservation may use this as a way to protect lands they see as vulnerable prior to different political parties taking office. Only time will tell.

[1]Proclamation No. 9558, 3 C.F.R § 9558 (Dec. 28, 2016).  

[2] Vivian Chu and Todd Garvey, Cong. Research Serv., CRS Report for Congress, Executive Orders: Issuance, Modificiation, and Revocation, (April 16, 2014), available at https://fas.org/sgp/crs/misc/RS20846.pdf.

[3] 54 U.S. Code § 320301

[4] Id.

[5] Proclamation No. 3539, 77 Stat. 1006 (May 27, 1963).

[6]  39 Op. Atty. Gen. 185 (1938)

[7] Id.

[8]Nick Bryner, Nationals Monuments Update, LegalPlanet (June 13, 2017), http://legal-planet.org/2017/06/13/national-monuments-update/.

[9] John Yoo and Todd Gaziano, Presidential Authority to Revoke or Reduce National Monuments, American Enterprise Institute, (March 2017), https://www.aei.org/wp-content/uploads/2017/03/Presidential-Authority-to-Revoke-or-Reduce-National-Monument-Designations.pdf.

[10] Id.