President Trump signed an Executive Order (“EO”) on April 26, 2017, directing the Secretary of the Interior to conduct a review of all Presidential designations or expansions of designations of national monuments under the Antiquities Act.1 The review mandated by the EO applies to designations or expansions made since January 1, 1996 of greater 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. In each of these situations the Secretary is to determine whether the designation or expansion conforms to the policy set forth in the newly issued EO.
The Antiquities Act:
The Antiquities Act2 was enacted in 1906, and provides the following expansive authority: The President of the United States is authorized in his discretion to declare by public proclamation historic landmarks, historic and pre-historic structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments. The President may reserve as part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.
The Act does not set forth any more specific requirements that a proposed national monument must meet. Consequently, the Antiquities Act gives the president substantial discretion in designating national monuments. Some national monument designations identify particular objects needing protection, while others refer generally to scenic, scientific, or educational features or interests. Presidents have designated monuments for conservation, recreation, scenic protection, or protection of living organisms. Similarly, some monument proclamations have pointed generally to the need for the protection provided by the designation, due to threats to natural and cultural resources.3
The scope of reservations of land varies considerably, and monuments vary widely in size.4 This range in sizes and characteristics of individual national monuments makes it impossible to implement uniform government-wide management standards. Rather, management is delegated on a case-by-case basis to individual responsible agencies.
The New Policy:
Section 1 of the EO acknowledges that monument designations are “a means of stewarding America’s natural resources, protecting America’s natural beauty, and preserving America’s historic places.” However, the EO criticizes designations that “result from a lack of public outreach and proper coordination with State, tribal, and local officials and other relevant stakeholders,” noting that such designations create barriers to achieving energy independence, restrict public access to Federal lands, and otherwise curtail economic growth. The EO instructs that designations should be made in accordance with the “requirements and original objectives” of the Antiquities Act, and should “appropriately balance” the protection of landmarks, structures, and objects against the “appropriate use” of Federal lands and effects on surrounding communities.
Section 2 of the EO directs the Secretary to consider the following in conducting reviews:
(1) the requirements and original objectives of the Act, including the Act’s requirement that reservations of land not exceed “the smallest area compatible with the proper care and management of the objects to be protected”; (2) whether designated lands are appropriately classified under the Act as “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest”; (3) the effects of a designation on the available uses of designated Federal lands, including consideration of the multiple-use policy of section 102(a)(7) of the Federal Land Policy and Management Act (43 U.S.C. 1701(a)(7)), as well as the effects on the available uses of Federal lands beyond the monument boundaries; (4) the effects of a designation on the use and enjoyment of non-Federal lands within or beyond monument boundaries; (5) concerns of State, tribal, and local governments affected by a designation, including the economic development and fiscal condition of affected States, tribes, and localities; (6) the availability of Federal resources to properly manage designated areas; and (7) such other factors as the Secretary deems appropriate.
The EO also directs the Secretary, as part of the review process, to consult and coordinate with other departments, governors of states affected by monument designations, or other relevant officials of affected state, tribal, and local governments. A final report on the review is due within 120 days. The recently designated Bears Ears National Monument is a particular target. The EO requires an interim report on that designation summarizing the findings under the above factors to be submitted within 45 days.
Environmental groups have voiced concerns about potential reductions and eliminations of national monuments created under the broad presidential discretion provided by the Antiquities Act and may be preparing lawsuits to challenge actions taken following the reviews. It remains to be seen whether the administration will unilaterally take such action or use the reports and findings to push for congressional action. In either event, eliminating or reducing a presidentially proclaimed designation made under a congressionally authorized power may be difficult. Courts have upheld presidential designations under the Antiquities Act and have given great deference to the vested authority granted to presidents. Courts have held that they have only a limited review of a monument proclamation, provided that the proclamation states the natural or historic interest preserved and identifies an area that is the minimum amount needed to protect the stated interest or interests.5
Based on the above listed factors articulated in the EO, the administration may focus its rationale for reduction or elimination of designations on whether the presidential proclamation creating the monument exceeded the discretion provided by the Antiquities Act by exceeding the limits of the factors enumerated in the Act itself, such as type of feature and size of area protected. However, the EO fails to note that the Act includes items of “scientific interest” as well as historic interest (which could be expansive), and appears to leave to the discretion of the designating president the area compatible with “proper care and management” of the “objects to be protected.”
We will monitor and keep you informed of developments on the administration’s reviews and actions that may be taken.