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As Utah political leaders continue predicting President Donald Trump will shrink or even erase the new Bears Ears National Monument, a soon-to-be published legal analysis concludes that presidents have no authority to mess with monuments established by a predecessor.
Such moves would defeat the purpose of the Antiquities Act, the 1906 law that authorizes presidents to unilaterally set aside public lands to protect "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest," according to Sean Hecht, a law professor at the University of California, Los Angeles.
"If you look at both the original Antiquities Act in context of other statutes of its time and the Federal Land Policy and Management Act that overhauled public land management in 1976, the evidence is clear Congress intended this to be a one-way designation," said Hecht, co-executive director of UCLA's Emmett Institute on Climate Change and the Environment. "It can be proclaimed, but not revoked or reduced."
Hecht is an author on the paper, accepted for publication online next month in the Virginia Law Review. He and fellow scholars, including University of Colorado's Mark Squaillace, conclude that Congress in 1906 delegated monument-making authority to presidents, whose designations carry the weight of congressional acts that only Congress has the power to adjust.
They also argue that if Congress wanted to empower presidents to undo monuments, it would have specified that authority in various land statutes it passed following the Antiquities Act — but instead chose not to.
This logic is being denounced by other scholars at the property-rights group Pacific Legal Foundation, which recently released its own study that came to an opposite conclusion. They say Hecht's analysis is based on "three flimsy arguments" that fail to address the presumption that presidents hold authority to challenge prior executive actions.
"That presumption is so strong there is no necessity for Congress to expressly provide that the president can revoke or modify what an earlier president created," study co-author Todd Gaziano, the group's DC Center executive director, wrote in an email.
"The new legal analysis by four environmental law professors does not address that overwhelming body of law, but instead makes extravagant claims based on isolated passages in other statutes that have no relevance to the central question of the president's clear authority to revoke prior national monument designations," Gaziano continued.
Hecht and three colleagues were assembling their study when Trump issued his recent executive order instructing Interior Secretary Ryan Zinke to make recommendations for adjusting Bears Ears' 1.3 million-acre boundary and 26 other large monument designated since 1996, including the 1.9 million-acre Grand Staircase-Escalante National Monument.
Members of the public have until May 26 to submit comments online regarding Bears Ears, designated Dec. 28 by President Barack Obama weeks before he left office. The comment deadline is July 10 for the other monuments under review.
So far, 75,000 comments have been submitted, 32,000 of which mention Bears Ears. The comments favor leaving monument boundaries intact by a margin of 100-to-1, according to Utah Dine Bikeyah, a grass-roots Navajo group that has long advocated for protecting Bears Ears.
However the Utah public feels about the monument, the current president's ultimate decision to reduce Bears Ears or other monuments, or leave them intact, is all but sure to launch a flotilla of lawsuits.
While Hecht predicts that a move by Trump to reduce any monument will fail in court, his conclusions clash with those advanced by legal scholars John Yoo and Gaziano in their report issued March 28.
Unveiled by Utah Republican Sen. Mike Lee and Rep. Rob Bishop alongside the authors, that study argues that when Congress gives federal agencies the power to create regulations, it also allows them to toss out those rules. They say a president has an even better case to throw out a monument designation if it was based on factual errors or circumstances change.
Lee has said he expects Trump to correct what he calls an abuse of the Antiquities Act by Obama when he proclaimed 1.3 million acres in San Juan County against the express wishes of local leaders.
Hecht and other scholars point out that the influence of those leaders is exactly what the Antiquities Act sought to evade, since the law's goal was to put the national interest of protecting objects of "scientific interest" ahead of the parochial interests of nearby residents.
"Faced with a concern that historical, archaeological, and natural or scenic resources could be damaged or lost, Congress purposefully devised a delegation to the president to act quickly to ensure that objects of historic and scientific interest on public lands can be preserved before they are looted or compromised by incompatible land uses, such as the location of mining claims," Hecht and co-authors wrote. "Once the president has determined that these objects are worthy of protection, no future president should be able to undermine that choice."
In 110 years, 16 presidents of both parties have designated 157 monuments. Obama was the most prolific, responsible for a fifth of the total.
There are precedents for presidents shrinking monuments, but the courts have yet to weigh in on the matter.
President Woodrow Wilson shaved off half of Mount Olympus National Monument, designated by President Theodore Roosevelt in 1909 as the nation was preparing for to enter World War I. When Wilson acted, there was broad support for freeing up the monument's timber resources and his move was never legally challenged. However, Congress later enlarged the monument and upgraded Olympus to a national park.
Several tribes and conservation groups have vowed to sue if Trump diminishes Bears Ears, so whatever action he takes could result in judicial opinions governing how the Antiquities Act is used by future presidents.
Brian Maffly covers public lands for The Salt Lake Tribune. Brian Maffly can be reached at bmaffly@sltrib.com or 801-257-8713.
Twitter: @brianmaffly New poll finds Bears Ears support
A new poll commissioned by Utah Dine Bikeyah, a grass-roots Navajo group, says two-thirds of Utah voters support monument status for Bears Ears, suggesting that Utah's congressional delegation is out of step with its constituents.
But those poll findings are at odds with other recent surveys that found lukewarm support or widespread opposition to the monument, pushed by the Navajo Nation and four other American Indian tribes and designated by President Barack Obama in December.
After hearing arguments for and against monument designation, 64 percent of respondents endorsed the monument, the Utah Dine Bikeyah poll found. Fifty-three percent said the designation was "a good thing" for Utah.
Conducted the week of May 12 by Republican pollster Public Opinion Strategies, the survey contacted 500 voters statewide and has a margin of error of plus or minus 4.4 percent.