“Presidents Lack the Authority to Abolish or Diminish National Monuments” (Published Version)

Mark Squillace, Eric Biber, Nicholas S. Bryner, & Sean B. Hecht have published “Presidents Lack the Authority to Abolish or Diminish National Monuments” in the Virginia Law Review Online. PDF

An excerpt:

The narrow authority granted to the President to reserve land[11] under the Antiquities Act stands in marked contrast to contemporaneous laws that delegated much broader executive authority to designate, repeal, or modify other types of federal reservations of public lands. For example, the Pickett Act of 1910 allowed the President to withdraw public lands from “settlement, location, sale, or entry” and reserve these lands for a wide range of specified purposes “until revoked by him or an Act of Congress.”[12] Likewise, the Forest Service Organic Act of 1897 authorized the President “to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve.”[13]

Unlike the Pickett Act and the Forest Service Organic Administration Act, the Antiquities Act withholds authority from the President to change or revoke a national monument designation. That authority remains with Congress under the Property Clause.

Legal Planet: “Politicians and Commentators Who Criticize Recent National Monuments Are Making Up Their Own Version of History”

By Sean Hecht (“Go Blue”), here.

An excerpt:

But the idea that large monument designations are new or inappropriate is, much like other current right-wing narratives about the Environmental Protection Agency and other federal agencies, a false story based on false history.  Bears Ears contains tens of thousands of culturally and archaeologically significant sites.  In this case, as in others, preserving a large area of land is warranted in order to adequately protect unique ecological and cultural resources.   Beyond that, the history of the Act’s application, and the history of court decisions interpreting the Act, demonstrate that since the Act’s enactment, Presidents have lawfully designated large monuments to protect landscapes, ecosystems, and natural features as well as culturally important sites.

I haven’t done the math to fact-check the claim by Secretary Zinke that “since the 1900s, when the Act was first used, the average size of national monuments exploded from an average of 422 acres per monument.”  The claim is written so ambiguously that it may mean any number of things.  But any cursory look at the history of monument designations reveals that this claim, and similar claims by Sen. Hatch and others, are false or extraordinarily misleading.

In fact, the Antiquities Act has been used to protect enormous areas of land since 1908, when President Roosevelt designated the 818,000-acre Grand Canyon National Monument.  He also designated the 615,000-acre Mount Olympus National Monument in 1909, and the 60,000-acre Petrified Forest National Monument in 1906, within a few months of the passage of the Act.


And from HuffPo: “Why Trump Doesn’t Have The Power To Mess With National Monuments.”

Micro-Response on the Presidential Authority to Terminate or Diminish National Monuments

From one of the authors of the original paper:

It is true that there have been a number of proclamations diminishing monuments in the past but none of these have been challenged in court so no court has ever passed on the legality of these actions.  Moreover, all of these actions were pre-FLPMA, which matters significantly here because FLPMA repealed the Midwest Oil decision.  A 1935 Solicitor’s Opinion relied heavily on Midwest Oil to justify proclamations that diminished monuments.  Post FLPMA, that justification is gone.

Original post here.

House Resources staff response.