Bears Ears reduction NOT unprecedented, and not up to Congress

The Antiquities Act — which says monuments should be limited to the smallest area compatible with the site or object being protected — does not explicitly give presidents power to downsize monuments or eliminate them altogether.

But for more than a century, presidents have cut monuments, and their efforts haven’t been thwarted by Congress or the courts.

Ben Wolfgang

Washington Times

The Trump administration’s “unprecedented” effort to break up and shrink a national monument has been done at least 18 times before, with presidents of both parties exercising power to significantly reduce the size of U.S. landmarks established by their predecessors.

Environmentalists and congressional Democrats are framing the current battle — the Interior Department’s proposal to resize Bears Ears National Monument in Utah — as a first-of-its-kind expansion of executive power, a move that stretches to the breaking point the century-old Antiquities Act, which gives presidents authority to create monuments.

The resizing of Bears Ears is just one piece of the administration’s broader review of nearly two dozen national monuments.

The Sierra Club, one of the nation’s most powerful environmental groups, issued a fundraising email last week calling the Bears Ears proposal a “legally unprecedented action.”

Congressional Democrats voiced similar objections. Sen. Jeff Merkley of Oregon called the entire monument review “legally dubious,” and Sen. Ron Wyden, also of Oregon, said the president’s executive order calling for the review “flies in the face of a century-old bipartisan tradition.”

The reality, however, is much different. If anything, there is a tradition of presidents making major changes to monuments. In 1915, President Wilson cut the size of Washington’s Mount Olympus National Monument by more than 300,000 acres.

“It can be done, and past presidents have done it. It demonstrated the truth of what I’ve said all along: Just as no Congress can bind a future Congress, no president can bind the nation in perpetuity. It doesn’t make any sense,” said William Perry Pendley, president of the Mountain States Legal Foundation, a nonprofit group that battled the federal government in court over President Clinton’s creation of the massive Grand Staircase-Escalante National Monument in Utah.

That monument is also under review by the Trump administration.

“I don’t think it would take the courts long at all to dispose of any challenge to the presidential authority to do this,” Mr. Pendley said.

The Antiquities Act — which says monuments should be limited to the smallest area compatible with the site or object being protected — does not explicitly give presidents power to downsize monuments or eliminate them altogether.

But for more than a century, presidents have cut monuments, and their efforts haven’t been thwarted by Congress or the courts.

It has been done at least 18 times since the Antiquities Act was signed into law in 1906, according to information from the National Park Service and the House Natural Resources Committee.

Most were relatively small. Franklin D. Roosevelt cut Arizona’s Wupatki National Monument by 52 acres, and Dwight D. Eisenhower cut Alaska’s Glacier Bay by 4,193 acres. William Howard Taft, John F. Kennedy, Calvin Coolidge and Harry S. Truman also reduced sizes of monuments.

Eisenhower and Roosevelt were the most active, cutting six and four monuments, respectively.

Washington’s Mount Olympus, now a part of Olympic National Park, has been the most frequent target. In 1909, President Theodore Roosevelt granted monument status covering more than 610,000 acres.

But its size was quickly reduced. Taft in 1912 eliminated 160 acres. Wilson dramatically cut the monument by about 50 percent in 1915. Coolidge reduced the monument by 640 acres, according to National Park Service data.

Despite the history, environmental groups say, the Trump administration’s monument review is under a vastly different landscape.

Indeed, no recent monument designations have been targeted for reductions. Kennedy was the last to downsize a monument, cutting Utah’s Natural Bridges by 320 acres. That monument was established in 1909.

In addition, conservation organizations say, two laws — the 1976 Federal Land Policy and Management Act and updates to the National Park Service Organic Act in 1970 — seem to give Congress wide latitude when it comes to adjusting monuments.

Some argue that the monument reductions made in the early part of last century were necessary because the government lacked the technological expertise to determine exactly what areas should be protected — challenges that no longer exist.

“A majority of the past adjustments were to correct for mistakes of what was or wasn’t preserved in the original monument boundaries. When presidents designated monuments in the early part of the century, they often did so with limited knowledge of where objects of scientific or historic interest were,” said Virginia Cramer, a spokeswoman for the Sierra Club’s “Our Wild America” campaign.

“Given the robust public process and improved mapping and scientific information, no monument designated in the past 80 years has been reduced by a later president,” she said.

On the other side of the debate, supporters of monument reductions say recent presidents have greatly abused their authority under the Antiquities Act. President Obama, for example, designated far more land and water as national monuments than any other president.


While monument designations were intended to protect specific historic sites, the Obama administration used the label to cordon off huge stretches of land and sea, blocking energy development and other activities.

In the case of Bears Ears, there is a massive swath of land in the middle of the monument that critics say should not be classified as a monument.

“The goal is to protect the historic and prehistoric structures, no doubt. It’s a little premature to throw out acreage, but if you look at Bears Ears as a whole, there’s a lot more drop-dead-gorgeous land than there is historic landmarks, prehistoric structures and other objects,” Interior Secretary Ryan Zinke said last month when announcing the Bears Ears reduction plan.

Mr. Zinke said there are two specific areas he believes should remain as national monuments: the area containing the actual Bears Ears geological formation, and an area farther north that contains a “high density of archaeological sites.”

The land in the middle could lose its monument status or revert to federally protected wilderness area, which would mean it still has some protections but isn’t entirely shut off to energy exploration and other activities.

Despite the 100-year history of monument reductions, legal analysts say, the issue still isn’t settled because no real challenges have been made to presidential cuts. Environmental groups are sure to file lawsuits if and when the Trump administration finalizes its Bears Ears plan.

Previous reductions do not “establish any legal precedent as to whether or not somebody today could challenge it,” Mr. Pendley said.

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  1. The Federal Land Policy and Management Act of 1976 clarified the intent of Congress regarding national monuments. Under the Antiquities Act, Congress delegated to the President ONLY the authority to proclaim a national monument, but NOT to revoke or modify a national monument.

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