Issues to Watch

Monumental Changes: Bears Ears National Monument and Executive Authority Under the Antiquities Act of 1906


Jonathan Lucido*

In a letter to then-Secretary of the Interior, Ryan Zinke (Secretary Zinke), the National Trust for Historic Preservation identified Bears Ears National Monument (BENM) as one of the most significant cultural landscapes in the United States.  Letter from Stephanie K. Meeks, Chief Exec. Officer, Nat’l Tr. for Historic Pres., to Ryan Zinke, Sec’y, U.S. Dep’t of the Interior (June 26, 2017), https://www.regulations.gov/document?D=DOI-2017-0002-364407.  Just a few months later on December 4, 2017, President Trump moved to reduce the size of BENM from the 1.35 million acres previously designated by President Obama to approximately 201,876 acres.  Proclamation No. 9681, 82 Fed. Reg. 58081, 58081, 58085 (Dec. 4, 2017).  That same day, President Trump issued another proclamation in which he modified the size of the Grand Staircase-Escalante National Monument (GSENM).  Proclamation No. 9682, 82 Fed. Reg. 58081, 58089, 58093–95 (Dec. 4, 2017).

These proclamations were the by-product of an Executive Order designed to initiate the review of land designations made pursuant to the Antiquities Act of 1906 (Antiquities Act).  Exec. Order No. 13,792, 82 Fed. Reg. 20, 429 (May 1, 2017).  The Trump Administration relied on specific language in the Antiquities Act to reduce the size of BENM.  Proclamation No. 9681, 82 Fed. Reg. at 58082.  The Antiquities Act states that the President may declare historic landmarks with the limitation that such a designation should be “confined to the smallest area compatible with proper care and management of the objects to be protected.”  54 U.S.C. § 320301(b) (Supp. II 2015).

I.  The Legal Battle Over Presidential Authority Under the Antiquities Act

In the wake of the BENM size reduction, there have been constitutional and statutory challenges alleging that the President’s actions were neither constitutional nor statutorily valid.  NDRC et al. v. Trump (Bear Ears), NRDC, https://www.nrdc.org/court-battles/nrdc-et-v-trump-bears-ears (last updated Nov. 4, 2019).  The litigation arising from these claims is currently pending.  Id.  Those in opposition to the BENM size reduction argue that the Antiquities Act does not authorize the President to abolish monuments, they contend it only permits the President to designate objects and tracts of federal land as national monuments.  Carol J. Miller, For a Lump of Coal & a Drop of Oil: An Environmental Critique of the Trump Administration’s First Year of Policies, 36 Va. Evtl. L. J., 186, 244–45 (2018).

President Trump’s counsel addressed this point directly by arguing that the power to reduce the size of national monuments is “confirmed by the text and legislative history of the Antiquities Act, a longstanding and extensive practice of modifying monument boundaries, and congressional acquiescence in the exercise of this authority over many decades.”  Memorandum in Support of Federal Defendants’ Motion to Dismiss at 38, Hopi Tribe v. Trump, Nos. 1:17-cv-02590 (TSC), 1:17-cv-02605 (TSC), 1:17-cv-02606 (TSC), 2018 WL 4701962 (D.D.C. filed Oct. 1, 2018).  The President’s counsel also asserts that congressional acquiescence has historically followed these types of boundary modifications, providing specific instances in which former presidents took such action.  Id. at 33–35.  This debate is not unique to the BENM litigation, legal academics are also divided as to whether a president may revoke the designation of land as part of a national monument.  John Yoo & Todd Gaziano, Presidential Authority to Revoke or Reduce National Monument Designations, 35 Yale J. On Reg. 617, 630 (2018).

II.  Exposing Economic Motivations

The contentious issues arising out of President Trump’s massive size reductions to national monuments are intensified by the belief that his actions are motivated by economic interests in mineral resources located on federally protected lands like BENM and GESNM.  Miller, supra at 237–39.  This belief is well-grounded because President Trump’s Administration is determined to deregulate and grow the energy sector of the United States, which has benefitted oil, gas, and coal special interests to a great extent.  Rachel Wilson, Oil, Gas and Coal Interests Filling Donald Trump’s ‘Swamp’ with Cash, Ctr. for Pub. Integrity (May 2, 2017), https://publicintegrity.org/federal-politics/oil-gas-and-coal-interests-filling-donald-trumps-swamp-with-cash/.  Under the Obama Administration, Proclamation 9558 specifically protected against mineral extraction within the boundaries of BENM that would not further the “protective purposes of the monument.”  82 Fed. Reg. 1139, 1143 (Jan. 5, 2017).  Concerns relating to the protection of monuments are not exclusive to BENM and GESNM, additional national monuments are targets for size reduction due to the resources located within their boundaries, or the impact they have had on business development in their respective regions.  Lisa Friedman et al., 27 National Monuments are Under Review. Here are Five to Watch, N.Y. Times, https://www.nytimes.com/interactive/2017/08/11/climate/doi-monument-review-five-to-watch.html (last updated Aug. 16, 2017).

The fear that President Trump’s actions were motivated by economic interests has been intensified by those who have held the position of Secretary of the Interior during the Trump Administration.   In a January 2018 press release, Secretary Zinke made it clear that he was committed to the development of coal, oil, gas, and renewable energy on federal and tribal land.  Miller, supra at 238 (citing Press Release, U.S. Dep’t of the Interior, Sec’y Zinke Announces Plan for Unleashing Am.’s Offshore Oil & Gas Potential (Jan. 4, 2018), https://www.doi.gov/pressreleases/secretary-zinke-announces-plan-unleashing-americas-offshore-oil-and-gas-potential).  Although Secretary Zinke recently resigned amidst investigations into his management of the Department of the Interior, he was replaced by one of his deputies, David Bernhardt, who formerly lobbied for oil and gas interests.  Darryl Fears, Senate Confirms Former Oil and Gas Lobbyist David Bernhard as Interior Secretary, Wash. Post (Apr. 11, 2019, 3:15 PM), https://www.washingtonpost.com/climate-environment/2019/04/11/senate-confirms-former-oil-gas-lobbyist-david-bernhardt-secretary-interior/.

Additionally, government agencies are moving forward with the execution of Trump’s Proclamation by issuing proposed plans and a final environmental impact statement (EIS) for BENM following its size reduction.  See U.S. Dep’t of the Interior Bureau of Land Mgmt. & U.S. Dep’t of Agric. U.S. Forest Serv., Bears Ears National Monument: Proposed Management Plans and Final Environmental Impact Statement 1 (2018), https://eplanning.blm.gov/epl-front-office/projects/lup/94460/154291/188908/BENM_Draft_MMPs-EIS_Volume_1_Chapter_1-4.pdf.  The EIS issued by the Department of the Interior and the Department of Agriculture recognizes that oil and gas developments in the BENM region have progressed more slowly than originally anticipated.  Id. at 3-107, 3-111–12.  However, suspicions surrounding the economic motivations behind the modifications to BENM are supported by internal emails from the Department of the Interior, which reveal motivations to develop untapped resources within the BENM’s boundaries previously established by President Obama.  Eric Lipton & Lisa Friedman, Oil Was Central in Decision to Shrink Bears Ears Monument, Emails Show, N.Y. Times (Mar. 2, 2018), https://www.nytimes.com/2018/03/02/climate/bears-ears-national-monument.html.

III.  Future Implications

In the wake of the BENM size reduction, areas previously designated as part of the monument are left “vulnerable to mining, drilling, and irresponsible off-road vehicle use.”  Bears Ears National Monument, Grand Canyon Tr., https://www.grandcanyontrust.org/bears-ears-national-monument (last visited Nov. 12, 2019).  Thus, no matter the outcome of the pending litigation, this issue will have an important impact on the powers accorded to the Executive Branch under the Antiquities Act and the ability to protect national monuments from resource exploitation in the United States.

*Jonathan “J.J.” Lucido is a second-year day student at the University of Baltimore School of Law, where he serves as a Staff Editor for Law Review and is a member of the Royal Graham Shannonhouse III Honor Society.  Jonathan is also a member of the National Trial Competition Team, a teaching assistant for Professor John Bessler’s ILS/Civil Procedure I course, and a captain of the law school’s co-ed softball team.  This past summer, Jonathan worked as a law clerk at Offit Kurman, P.A., assisting in bankruptcy litigation.

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