The Trump administration this week is expected to release plans for potentially shrinking or revoking the status of 21 national monuments, setting the stage for a years-long legal battle that could pit the White House against Indian tribes, environmentalists and some western states.
Five of those monuments are in California — more than any other state — and two of the most contentious are in southern Utah: The new Bears Ears National Monument and the Grand Staircase-Escalante National Monument, established in 1996.
Several congressional Republicans have urged Trump and Interior Secretary Ryan Zinke to reverse monument designations made by Barack Obama and other past presidents, calling them federal “land grabs” that restrict mining and energy development. But supporters say that these monuments help protect important landscapes and objects of history, including Native American antiquities.
“This is a ‘who’s side are you on?’ moment for Secretary Zinke and the Trump administration,” said Matt Lee-Ashley, who was an Obama-era Interior official and now works at the Center for American Progress, a D.C.-based think tank.
“Are they really going to try to prop up Confederate statues while shutting down national monuments in the West that help safeguard Native American history and culture?” he added, referring to Trump’s recent tweets that America’s history was “being ripped apart” by removal of Confederate statues and monuments.
Trump campaigned on opening up more federal land to oil drilling and mining. His focus on national monuments started after Obama, days before leaving office, established the Bears Ears monument, limiting energy development and new mining claims across 1.3 million acres.
Indian tribes and environmental groups had lobbied Obama for years to protect the area’s cliff dwellings and rock art from looters, vandals and new road construction. But numerous Utah politicians protested the designation, calling it a “midnight monument.”
In April, Trump directed Zinke to review monuments created by his predecessors and make recommendations on those that “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.”
Zinke initially designated 27 monuments for review, but has since “pardoned” six of those, including Hanford Reach in Washington state, Craters of the Moon in Idaho and Sand to Snow National Monument in California. According to the League of Conservation Voters, the Interior Department received a record 2.7 million comments on the review, largely a product of environmental groups mobilizing their members.
The secretary issued a interim recommendation in June that the boundaries of Bears Ears should be shrunk to the “smallest area compatible” with protection of the area’s antiquities. But it is not known what he will advise Trump on other monuments, including the five in California. He has a Aug. 24 deadline to make final recommendations.
In California, the five monuments are Carrizo Plain, Giant Sequoia, Mojave Trails, San Gabriel Mountains and Berryessa Snow Mountain, a 330,000-acre monument west of Sacramento that Obama established in 2015.
In formulating his recommendations, Zinke appears to be paying attention to wishes of GOP lawmakers. On June 30, 17 House Republicans sent the Interior Secretary a 28-page letter with their recommendations. They advised him to take no action on the Hanford Reach and Snow to Sea monuments, and Zinke agreed.
Those same lawmakers advised Zinke to completely rescind Bears Ears, Grand Staircase-Escalante Berryessa Snow Mountain and others, a recommendation that Zinke could issue by Thursday. Doug LaMalfa and Tom McClintock of California were two of the congressmen signing the letter.
Law scholars agree that Trump has the authority to shrink the boundaries of monuments, presuming he backs up those decisions with legally defensible findings. But many legal experts doubt he has the authority to rescind monuments established by previous presidents, noting that the 1906 Antiquities Act is silent on that question.
In an Aug. 1 op-ed, conservative scholar Bruce Fein argued that only Congress has the power to rescind a monument. “The fact that no president in more than a century has attempted to revoke a national monument designation is strong evidence that the power does not exist,” Fein wrote.
Not all legal experts agree.
Todd Gaziano, executive director of the Pacific Legal Foundation’s D.C. Center, said that just because the Antiquities Act doesn’t give the president specific power to rescind monument status doesn’t mean the president can’t take that action. “The Supreme Court doesn’t have the express power to overrule an opinion from a previous court, but it does anyway,” he said.
The argument against rescinding monuments relies heavily on a 1938 opinion written by President Franklin Roosevelt’s attorney general, said Gaziano, who co-authored a paper in March that lays out why the opinion is flawed. Before Trump makes his final decision on national monuments, Gaziano expects that Attorney General Jeff Sessions or the Justice Department’s Office of Legal Counsel will write a new legal opinion. “That 1938 opinion will be wiped off the books,” he said.
That’s to be determined. If Trump attempts to yank monument status from one or more locations, environmental law organizations, tribal lawyers and affected state attorneys general are vowing to fight the decision all the way to the Supreme Court.
“We are taking very seriously these threats,” said Nada Culver, senior counsel for the Wilderness Society. “We are prepared to take (legal) action as quickly as possible.”