Among the many executive orders signed by President Joseph R. Biden, Jr. on the day of his inauguration on Wednesday was an order to review certain actions by his predecessor regarding the adjustment of national monument boundaries.
Shortly after taking office, then-President Donald Trump ordered a review of national monuments created during and after the Clinton administration. After the review and report, completed by then-Secretary of the Interior Ryan Zinke, Trump issued proclamations reducing the size of the land reservations for two national monuments in Utah: Grand Staircase-Escalante (created by President Bill Clinton) and Bears Ears National Monument (created by President Barack Obama). These monuments were controversial at the time they were created, but Trump’s reduction was the first such effort since President John F. Kennedy, and it raised a statutory interpretation question of judicial first impression of the Antiquities Act, a statute dating back to 1906. See The Antiquities Act of 1906, Pub. L. 59-209, 34 Stat. 225, (codified as amended at 54, U.S.C. § 32031-320303)
The question in the case is whether a president, who is empowered to create a national monument and reserve land for its protection under the Antiquities Act, also has the power to reduce the land reservation of existing national monuments. While the incoming Biden administration may reverse the action, rendering the statutory interpretation question moot, the issue of whether a president may modify a national monument land reservation raises questions that may need to be answered by Congress.
A national monument consists of two elements: (1) the monument itself, which is an object of historical, scientific, educational or other interest; and (2) a reservation (or withdrawal) of federal land associated with the monument. While Congress has the constitutional power to control federally owned land under the Property Clause, in the case of national monuments it has delegated the authority to create national monuments to the president. The statute requires that land reservations be confined to the smallest area necessary for the care and protection of the objects in the monument; however, the statute does not specifically grant the power to the president to revoke, reduce or modify a national monument once it has been created. Those opposed to Trump’s proclamations modifying Grand Staircase-Escalante and Bears Ears National Monuments have claimed that, by leaving the statute silent, Congress intended to reserve modification power for itself. On the other hand, the president and his supporters argued that the power to modify is inferred in the statute and the president has the power to reverse a previous presidential proclamation as is the case with other executive orders.
The purpose of the Antiquities Act was protective and the impact of a land reservation is to “withdraw” such lands from traditional public land-management programs which allow for various uses, including extractive uses like mining as well as mechanized and other recreational uses and road building. Accordingly, interests in these uses oppose land reservations and lobbied Trump to take action under the Antiquities Act to reduce the land reservations to the “smallest area compatible with the proper care and management of the objects to be protected.” 54 U.S.C. § 320301(b)
Presidents have, in the past, modified land reservations for national monuments on the theory that they either were too large to begin with or because circumstances have changed which reduce the amount of land necessary. There have also been some minor adjustments to land reservations to correct errors. In all this has happened 18 times; however, there were no national monument revisions in the 55 years preceding Trump’s proclamations. In addition, while the creation of some national monuments have been challenged in the past, there is no direct precedent for a challenge of a modification resulting in a question of first impression.
If Trump’s proclamations are ultimately upheld, and if Congress does not amend the Antiquities Act to clarify the president’s power to reduce a national monument, national monuments could possibly become subject to modification when there are political changes in the administration. According to the National Park Conservation Association, 16 presidents have created 157 monuments under the Antiquities Act.
There are three national monuments in Washington State: Hanford Reach National Monument, created by Clinton in 2000 and comprised of 195,000 acres of buffer zone around the Hanford Nuclear Reservation; Mount St. Helens National Volcanic Monument, created by President Ronald Reagan in 1982 and consisting of 110,000 acres in Skamania, Lewis, and Cowlitz counties including Mt. St. Helens and the surrounding area; and San Juan Islands National Monument, created in 2013 by Obama and consisting of 1,000 acres in San Juan, Skagit and Whatcom Counties. While these are long-standing monuments that do not appear to be generating the controversy that might lead to reductions, the question of the power of the president to modify a national monument calls into question the statute of any national monument, including the three here in Washington.
President Biden’s proclamation calls for a review of President Trump’s actions with respect to national monuments and suggests that he intends to reverse the Trump proclamations, which he suggested he would do during his campaign. However, while a reversal would solve the problem in the litigation and likely render it moot, the Trump proclamations have exposed a potential weakness in the Antiquities Act.
Ralph Flick. Ralph is an assistant professor at Pacific Lutheran University in the School of Business, where he teaches business law and human resources. He chairs the WSBA Editorial Advisory Committee. He is licensed to practice in California and Washington and, prior to his teaching career, was a corporate lawyer—at various times in-house, in law firm practice, and as a solo practitioner. He also has a part-time business-law practice in Gig Harbor.
