Says designations are not authorized by Antiquities Act
A “Memorandum for the President” from Ryan Zinke, secretary of the Department of the Interior (DOI), recommends opening 10 national monuments and marine monuments to more commercial and recreational activity, which Zinke calls “traditional uses,” and revising the boundaries of four of these national monuments. The memo does not specify in acres how the size of the four national monuments should be revised. Overall, the DOI reviewed 22 national monuments and 5 marine monuments. Labeled as “Draft Deliberative—Not for Distribution,” the memo was leaked to the public by several news organizations the weekend of September 16, 2017.
Zinke delivered the memo in response to an Executive Order from President Donald Trump (EO). The EO was intended to begin the process on cutting down the size of designations made by President Barack Obama, who added more than 550 million acres to areas protected as national monuments. However, other designations made by Presidents Bill Clinton and G.W. Bush were also included in the review. While there was little surprise about the recommendations made by Zinke, the actual appearance of the memo sparked a barrage of attacks by environmental and conservative groups, as well as general support from industry groups and communities that might benefit economically from downsizing certain national monuments or changing their management plans. The memo also recommends that the president consider adding three new sites to the list of national monuments.
Probably the most controversial designation addressed in the memo is the Bears Ears National Monument (BENM) in Utah. This area was designated by Obama in December 2016, several weeks before he left the White House. Officially about 1.3 million acres in size, the BENM actually encompasses close to 1.5 million acres when state and private land within its boundaries are included. The memo concedes that the BENM “contains cultural and archaeological sites, unique geologic features, and areas important to the practice of tribal cultural traditions and ceremonies.” The oil and gas industry has expressed interest in about 100,000 areas of the BENM, and Utah’s state leaders, as well as its congressional delegation in Washington, have vowed to reverse the designation.
The memo has generated a debate about the extent of the president’s authority under the 1906 Antiquities Act (Act). While the Act gives the president the explicit authority to designate national monuments, it does not state that the president may abolish a national monument. Presidents have reduced the size of national monuments, but the last such reduction occurred 50 years ago. No such reduction has ever been challenged in court. However, environmental groups now say that they will take every legal avenue to stop any attempt by the administration to reduce the size of these protected federal lands.
The EO
The president’s EO stated that the secretary should review all presidential designations or expansions of designations under the Act made since January 1, 1996, where the designation covers more than 100,000 acres, where the designation after expansion covers more than 100,000 acres, or where the secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.
The EO further indicated that the secretary’s review and recommendations should be conducted according to the policy included in the EO. That policy states: “Designations should be made in accordance with the requirements and original objectives of the Act and appropriately balance the protection of landmarks, structures, and objects against the appropriate use of Federal lands and the effects on surrounding lands and communities.” The policy portion also states: “Such designations are a means of stewarding America's natural resources, protecting America's natural beauty, and preserving America's historic places. Monument designations that result from a lack of public outreach and proper coordination with State, tribal, and local officials and other relevant stakeholders may also create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth.”
Antiquities Act
Signed by President Theodore Roosevelt, the Antiquities Act authorizes the president to proclaim national monuments on federal lands that contain historic landmarks, historic and prehistoric structures, or other “objects of historic or scientific interest.” The Act states that the president is to preserve “the smallest area compatible with the proper care and management of the objects to be protected.” The Act was designed to protect federal lands and resources quickly. Congress has modified many of these proclamations and has abolished some monuments. Congress also has created monuments under its own authority.
Secretary’s impressions
Zinke states that the memo includes the “Impressions of the Secretary of the Interior,” suggesting that the memo comprises his personal views of the goals and intent of the Act, how recent administrations have made designations that exceed that intent, and the continuing role of Congress to designate national monuments that may be outside the scope of the Act. “Impressions,” even those offered by the head of a federal agency, may carry less weight in court than a legal interpretation or brief offered by agency attorneys. Nonetheless, Zinke notes that since Roosevelt made the first designation—the 1,200-acre Devil’s Tower in Wyoming—the Act has been “largely viewed as an overwhelming American success story and today includes almost 200 of America’s greatest treasures.”
“More recently, however, the Act’s executive authority is under scrutiny as Administrations have expanded both the size and scope of monument designations,” Zinke adds. “Since 1996 alone, the Act has been used by the President 26 times to create monuments that are over 100,000 acres or more in size and have included private property within the identified external boundaries. While early monument designations focused more on geological formations, archaeological ruins, and areas of historical interest, a more recent and broad interpretation of what constitutes an ‘object of historic or scientific interest’ has been extended to include landscape areas, biodiversity, and viewsheds.”
Designations under this “broad interpretation,” Zinke says, is the work of Congress, not the president.
“No President should use the authority under the Act to restrict public access, prevent hunting and fishing, burden private land, or eliminate traditional land uses, unless such action is needed to protect the object,” Zinke writes. “It is Congress, and not the President, that has the authority to make protective land designations outside the narrow scope of the Act, and only Congress retains the authority to enact designations such as national parks, wilderness, and national conservation and recreation areas. The Executive power under the Act is not a substitute for a lack of Congressional action on protective land designations.”
Politically motivated designations
Looking at the designations made since 1996, Zinke writes that adherence to the Act’s definition of an “object” and “smallest area compatible” clause on some monuments were either “arbitrary or likely politically motivated, or boundaries could not be supported by science or reasons of practical resource management. Despite the apparent lack of adherence to the purpose of the Act, some monuments reflect a long public debate process and are largely settled and strongly supported by the local community. Other monuments remain controversial and contain significant private property with the identified external boundary or overlap with other Federal land designations such as national forests, Wilderness Study Areas, and lands specifically set aside by Congress for timber production.”
In May 2017, the DOI announced that it would review designations as directed by Trump’s EO and requested public comment on the matter. This was the first time that regulations.gov—the federal Internet site that makes rulemaking and policy documents available to the public and archives public comments on those materials—has been used for a formal comment period associated with the Act. The memo reports that the DOI received over 2.8 million comments, the overwhelming majority of which favored maintaining existing monuments and “demonstrated a well-orchestrated national campaign organized by multiple organizations.”
Opponents of monuments primarily supported rescinding or modifying the existing monuments to protect traditional multiple use, “and those most concerned were often local residents associated with industries such as grazing, timber production, mining, hunting and fishing, and motorized recreation. Also, opponents point to other cases where monument designation has resulted in reduced public access, road closures, hunting and fishing restrictions, multiple and confusing management plans, reduced grazing allotments and timber production, and pressure applied to private land owners to sell their land encompassed by or adjacent to a monument.”
Objects not defined
Here are several additional “impressions” offered by Zinke.
“There are many instances of the use of the Act for the proper stewardship of objects. However, the Secretary has concerns that in modern uses of the Act, objects are not consistently and clearly defined. Lending further to this concern is that there are other areas, not a part of a monument, which contain virtually identical objects. The West was inhabited by ancient cultures, the remnants of which can be found throughout the land. These remnants are further preserved by the arid western climate. There is a question why only some of these resources were chosen as objects to protect under the Act, while others were not.”
“Throughout the review, the Secretary has seen examples of objects not clearly defined in the proclamations. Examples of such objects are geographic areas, ‘viewsheds,’ and ‘ecosystems.’ Ideally, the ‘historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest’ would be specifically identified, and then the quantity of land necessary to protect each object, if any, would be determined.”
“[P]rior administrations appear to have, in some instances, turned to designating monuments only after Congressional efforts to develop broader land-management legislation has stalled. As a result, monument boundaries mirror the previously proposed legislative boundaries that were not developed with the Act initially in mind.”
“In the case of lands administered by the Bureau of Land Management (BLM), designating geographic landscape areas as objects of historic or scientific interest is especially problematic given that the determination of land uses is normally done under the robust public balancing process pursuant to [the Federal Land Policy and Management Act]. When landscape areas are designated and reserved as part of a monument, objects and large tracts of land are overlain by a more restrictive management regime, which mandates protection of the objects identified. This has the effect of significantly narrowing the range of uses and BLM’s multiple-use mission. As a result, absent specific assurances, traditional uses of the land, such as grazing, timber production, mining, fishing, hunting, recreation, and other cultural uses are unnecessarily restricted. Such action especially harms rural communities in western states given that these towns have historically benefited from grazing, mining, and timber production on nearby public lands.”
Other concerns raised by Zinke about certain designations are the resulting restrictions on roads, which protect objects but also limit public access, federal acquisition of private land near national monuments, and jobs created by tourism not offsetting jobs lost because of restrictions on traditional land use.