Executive Power over National Monuments: An AAC Member and natural resource law Scholar weighs in on the future of Bears Ears

Photo by Taylor Luneau

Photo by Taylor Luneau

Taylor Luneau, AAC member & Natural Resource Law Scholar 

As happens to many climbers on their first trip to Indian Creek, I got spanked! The splitter sandstone was relentless and the grades fleeting. With the absence of face features, it was a whole new ball game for a climber born and raised on northeast schist and granite. However, within a matter of days, the climbing style grew on me and by the end of my first week I was floating up Incredible and Generic Hand Crack, stuffing in a #2 cam every ten feet or so. The trip was a formative one and I was hooked.

Leaving our slice of Heaven was made easier only with the knowledge that the Creek would always be there, waiting for me, nestled there in the canyons with desert washes and endless red rock walls. And, as many did on December 28th, 2016, I celebrated after President Obama issued a Presidential Proclamation establishing Bears Ears National Monument—a 1.35 million acre area area in San Juan County, Utah that encompasses Indian Creek, as well as the Valley of the Gods and Arch Canyon. This Presidential Proclamation is the first to recognize rock climbing as a valued activity and to ensure it as a priority in the management plan. It conserves these climbing meccas for future generations and for my chance of reunion. Or so I thought.

Today, the future of the Bears Ears is uncertain. Utah’s political leadership has formally requested that the President rescind Bears Ears National Monument through a joint resolution. As a legal scholar, I began to investigate if President Trump could actually lawfully abolish the designation of Bears Ears’ national monument status.

The short answer is NO!

But that answer is riddled with caveats and requires an understanding of The Antiquities Act, the law that enables the President to designate National Monuments.

The Antiquities Act of 1906

The Antiquities Act has been used to create more than 100 national monuments and protect 80 million acres of federal land since it was passed in 1906 (1). While the Antiquities Act gives the President authority to declare national monuments, it’s silent about the abolishment of a national monument. The core provisions of the Antiquities Act:

1) Give the President the authority to declare historic landmarks, prehistoric structures and other objects of historic or scientific interest that are situated upon lands owned or controlled by the Federal Government to be National Monuments.

2) Allow that the amount of land reserved must not exceed the smallest area necessary for its proper management. (2)

The Antiquities Act is clear about the President’s authority to create national monuments, but does the President have the authority to reverse a national monument designation?

In 1938, President Roosevelt considered abolishing the Castle Pickney National Monument in South Carolina. However, his Attorney General, Homer Cummings, said the President had no such authority because the law did not authorize the President to abolish national monuments (3). As a result, President Roosevelt did not change the status of the monument. While Roosevelt could not undo Pickney National Monument, it was eventually abolished by Congress in 1956 (4). Although Cummings advice was not a judicial ruling, his statement was the only legal authority to provide a statutory interpretation (5). Cumming's legal analysis was challenged for the first time ever this past week by conservative legal scholars at the American Enterprise Institute but their argument raises constitutional issues and overreach by the Executive Office. 

Although Presidents do not have the authority to abolish national monuments, they have altered monument sizes in order to meet the smallest area compatible criteria. (6) For example, Woodrow Wilson reduced the size of Mount Olympus National Monument in 1915. (7)

If President Trump attempts a full revocation of Bears Ears National Monument, litigation will follow. While courts would likely deny an Executive Order to fully repeal Bears Ears, the President may attempt to alter the size of the monument to meet the smallest area compatible to protect the cultural resources. Such an attempt would require the President to establish that the Monument was designated unnecessarily large for the protection of the scientific, historic or archeological objects of interest-- a fact that would likely be challenged by the Native American Tribes who claim ancestral ties to the landscape. Another consideration here is that The Federal Land Policy Management Act of 1976 (FLPMA) bars the Secretary of the Interior from altering the boundaries of monuments on BLM land so any Executive Order that attempts to direct the Secretary to make adjustments would not be legal (8). 

Congressional Discretion & Implications for Bears Ears National Monument

While the President does not have legal authority to undo a national monument, Congress does. Congress has broad discretion over national monuments primarily because of the Constitution’s Property Clause, which provides Congress the power to make decisions about public lands in the United States. Therefore, Congress does have the constitutional authority to create, modify, and abolish national monuments and it has exercised each of these powers in the past. (9)

What now?

The Bureau of Land Management and the U.S. Forest Service, in cooperation with the Bears Ears Commission, will continue to work together to create and implement a management plan for the new national monument. Recreation, conservation and tribal groups will be watching closely as the Trump administration and Congress sets its public lands priorities.

In the meantime, as climbers, we must continue to speak up together about why public lands matter and why we value the Bears Ears area in particular. Let’s push back against efforts to weaken federal land protections and undermine conservation designations. We need to vigilantly remind our legislators that we want to keep our public lands in public hands.

Finally, I encourage you all to continue to support groups like the American Alpine Club and Access Fund that persistently look out for the preservation of our climbing landscapes. I’ll be there with you, because the indigenous peoples, the land, water, and wildlife of the Bears Ears region deserve this monument designation. And … I want a second chance at sending Anunnaki in the Creek.

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Taylor Luneau, American Alpine Club Member

Dual Masters Candidate, 2018: Master of Environmental Law and Policy, Vermont Law School and Master of Science in Natural Resources, University of Vermont

 


ENDNOTES

[1] Coggins, Wilkinson, Leshy, Fischman, Federal Public Land and Resources Law, p. 394, 7th Ed., Foundation Press, 2014.

[2] Id.

[3] 39 Op. Att’y Gen. 185, 187 (1938).

[4] Vincent, Carol Hardy, National Monuments and the Antiquities Act, Congressional Research Service, p. 2, 2017.

[5] Id.

[6] Antiquities Act 1906-2006, National Parks Service Archeology Program, https://www.nps.gov/archeology/sites/antiquities/MonumentsList.htm (Last updated Dec. 28, 2016).

[7] Id.

[8] Federal Land Policy Management Act of 1976, https://www.blm.gov/or/regulations/files/FLPMA.pdf

[9] U.S. Const. art. IV, §3, cl. 2.