Photo: Northern boundary of the 2016 Bears Ears National Monument designation as viewed from Dead Horse Point State Park. By At Home in Wild Spaces.
Utah – A month of hindsight is a valuable thing. With a new year now underway, let's examine what we know concerning the legality of last year's reductions to Utah's national monuments and discuss how the issue may develop in 2018.
The question where it all begins: Were President Trump's December reductions even legal? Answer: Undetermined
The argument for the legality of President Trump's monument reductions is relatively simple and based on two claims.
Claim #1-The Antiquities Act grants the President discretionary authority to both designate new monuments and alter or revoke previous designations.
Claim #2 - There is precedent.
So how well do these two claims hold up to scrutiny? Answer: Not great.
The Antiquities Act gives Presidents authority to create national monuments on federally owned land at their discretion, but says nothing of altering or revoking previous designations. Ultimately, all hope for the long term legitimacy of President Trump's monument reductions rests on the question of precedent.
There have been at least 19 occasions where past presidents have amended monument boundaries by executive action, but this is where support for Trump’s cuts gets, well... problematic.
Historic monument alterations by presidents weren't necessarily reductions. For example: On August 14, 1962 President Kennedy signed a proclamation declassifying 320 acres of Utah’s own Natural Bridges National Monument, also adding 5,236 acres to the monument. Other alterations addressed oversights in previous designations where private property had been included within the original monument.
This all begs the question: What criteria, if any, must be met before President’s may alter existing monuments? Again, on these questions The Antiquities Act is completely silent.
While there are some clear examples of a one or two relatively moderate reductions, generally speaking alterations have been both minor and infrequent. President Trump's reductions on the other hand are frankly – unprecedented. His Dec 4, 2017 proclamations shrink Bears Ears (originally 1.35 million acres) by 1.15 million acres, and Grand Staircase-Escalante (1.9 million acres) by nearly 900,000 acres.
Historically, presidential reductions to monuments rarely affected more than 800 acres, less than one thousandth of Trump's reduction to Grand Staircase. The largest historical monument reduction occurred in 1915 when President Wilson, claiming the timber was needed for the war effort in Europe reduced Mount Olympus National Monument by 313,000 acres, a reduction that went unchallenged in court as did FDR's 72,000 acre reduction of Grand Canyon National Monument in 1940.
President Trump’s Dec 4th reductions alone strip monument status from 2 million acres: nearly four and a half times the 461,000 acres removed from national monuments by all of Trump’s predecessors – combined. And unlike the now relatively moderate reductions to Olympic and Grand Canyon, Trump's reductions were immediately met by a cascade legal challenges.
Finally, there is the Federal Land Policy and Management Act of 1976 to consider. Passed since the last presidential monument reduction in 1964, granting congress power and influence over national monument management decisions.
Photo: Sunrise looking East from Bears Ears National Monument. By At Home in Wild Spaces
So what does this all mean for 2018?
Since past reductions went unchallenged, the question of legality is being argued into a void. There is no clear answer as of yet whether the President's discretionary power to designate monuments also extends to altering or diminishing designations.
President Trump's proclamations are set to go into effect in early February; 60 days after they were signed. If one of the various courts now considering challenges to the President's reductions were to rule against them, implementation of Trump's proclamations would likely be held in legal stasis until a final verdict is made.
The ultimate question of legality may well be decided by the U.S. Supreme Court, though not likely before years end. Whenever the decision comes, it's guaranteed to be historic.
And then there's the question of congressional elections. Can or would congress throw its hat into the ring with legislative measures to support or overturn the President's monument reductions? Utah's delegation has already put forth legislation that would, if passed, make the reductions permanent and transfer some ex-monument lands to the state of Utah.
What do you think? How and when will the fate of Bears Ears and Grand Staircase-Escalante National Monuments be decided. Make sure to leave a comment below and share.
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