House Natural Resources Chairman Rob Bishop yesterday vowed to push legislation this congressional session "right-sizing" the Bears Ears National Monument and overhauling the century-old law President Obama used to create it.
"You can’t modernize the act administratively," the Utah Republican said. "All things should be done legislatively, including the damn Antiquities Act."
His comments came in response to news that President Trump will sign an executive order today calling for a review of the Antiquities Act and dozens of national monuments that were created by his predecessors in the past two decades — beginning with the controversial 1.35-million-acre Bears Ears monument (Greenwire, April 25).
Bishop is a longtime critic of the power the Antiquities Act grants to presidents to unilaterally protect vast swaths of land and water without the approval of Congress or local officials. As a result, he welcomed the upcoming executive order’s 120-day review of the law and monuments it has enabled, which will culminate in recommendations from Interior Secretary Ryan Zinke to rescind, resize or modify the management of some 30 monuments created since 1996 that are more than 100,000 acres in size.
The order "does what the past administration should have done," he said. "Talk to real people who live in the [affected] communities and not just special out-of-state interest groups."
Sen. Steve Daines (R-Mont.), who will be at the order-signing ceremony this morning along with Bishop, said the most important thing about the order is that it will create "a process that respects the input of local stakeholders." He added, "The current process does not."
But enacting the legislative changes Zinke eventually recommends or enacting a law to shrink the size of Bears Ears will remain a challenge for Bishop and other critics of the Antiquities Act.
"We’ve had this vote before [on overhauling the law], and it didn’t go through the Senate," said Sen. Maria Cantwell (D-Wash.), the ranking member on the Energy and Natural Resources Committee. "And there are more Democrats now, not less, than when we had the vote last time."
Other Democratic lawmakers have already warned that the review and legislative reform effort could prompt a major backlash.
"If this sweeping review is actually an excuse to cut out the public and to target these incredible landscapes for elimination or for scaling back the protections that exist there, I think this president is going to find a very resistant public," Sen. Martin Heinrich (D-N.M.) said on a call with conservation groups. "Any actions taken on behalf of designating or undesignating these national monuments should be part of a conversation with the American public."
He added, "If this president really wants to make America great, he will use the Antiquities Act the way that previous Republican and Democratic administrations have: to protect some of our greatest public assets."
While Congress itself can act to eliminate a monument, it has done so fewer than a dozen times since the law’s creation in 1906, more often opting to convert areas to national parks.
Bishop and other Republicans contend that the president could opt to rescind or reduce the boundaries of a monument through executive action, utilizing the Antiquities Act just as previous presidents have done to create monuments.
But no commander in chief has ever sought to reverse the designations of his predecessors, as Zinke acknowledged at last night’s White House press briefing.
"It is untested … whether the president can do that," he said of rescinding a monument.
University of Colorado Natural Resources Law Center Director Mark Squillace, who has studied the Antiquities Act, suggested on the conservationists’ call that the president would be in violation of the Constitution’s property clause if he were to attempt to do so.
"This language clearly does not include any authority to rescind or modify a national monument," he added of the Antiquities Act, noting that only Congress has that authority under the Constitution.
While former presidents have diminished the size of monuments — most notably the former Mount Olympus National Monument in Washington state and the Grand Canyon II National Monument — Squillace noted that none of those actions has ever faced legal challenges.
"No one ever litigated any of these reductions in the monument size. And so we don’t actually have any decision from any courts as to the legality of this," he said.
Before its conversion into Olympic National Park in 1938, Mount Olympus faced three rounds of reductions, including one by President Wilson that nearly halved its acreage. That action occurred in 1915, when Wilson cited the need for timber for airplanes and other projects related to World War I.
Squillace also suggested that while previous presidents may have had the ability to amend monuments, the creation of the subsequent statutes would have overridden that ability.
"The language in the Federal Land Policy and Management Act in 1976 would seem to suggest that whatever authority a president might have had to revoke or modify a monument is now gone because FLPMA was enacted after the most recent decision," Squillace said, pointing to a reduction made by then-President Eisenhower. Bureau of Land Management records show President Kennedy made reductions through 1963.
Christy Goldfuss, the Center for American Progress Action Fund’s vice president for energy and environment policy, noted on the call that while former Interior Secretary Gale Norton reviewed monuments created under the Clinton administration in the early days of President George W. Bush’s administration, no major changes were ultimately made.
At the time, Norton wrote to local officials seeking input on how land uses should be accommodated in areas like Grand Staircase-Escalate National Monument and asked to hear concerns about issues like off-highway vehicle access and grazing.
"I want to hear local voices and ideas on how to protect, use and care for these precious national treasures for generations to come," Norton wrote in a letter widely quoted at the time.