(Bloomberg Businessweek) -- Just before leaving office, President Barack Obama issued an executive order bestowing national monument status on 1.35 million acres of remote, rugged desert in southeast Utah called Bears Ears. The federal government already controlled the land, but by making it a national monument, Obama shielded it from future commercial development or mining.
That didn’t go over so well among Utah Republicans. Immediately, the state’s GOP congressional delegation began arguing that the Bears Ears designation was made against local wishes and without local input. Even before Donald Trump took office, Representatives Rob Bishop and Jason Chaffetz began lobbying him to reverse the order.
The question is whether he has the power to do so. The answer depends on your view of a 1906 law known as the Antiquities Act. Signed by Theodore Roosevelt, the law explicitly gives presidents the power to bestow national monument status on historic landmarks, structures, and other objects of scientific interest. What’s not clear is whether it also gives them the power to revoke that status.
“No president has ever rescinded, so there’s never been a case to take to court,” says John Leshy, who worked as the U.S. Department of the Interior’s top lawyer under President Bill Clinton. Absent any court guidance, the most instructive opinion dates from 1938, when President Franklin Roosevelt weighed whether to remove the monument status of a neglected Civil War fort in South Carolina. He decided not to after Attorney General Homer Cummings told him he lacked authority.
Rather than launching a frontal assault on the law with an executive order revoking the status of certain monuments, President Trump signed an order on April 26 directing the Interior Department to review some 30 monument designations larger than 100,000 acres made since 1996. Interior Secretary Ryan Zinke will have 45 days to suggest which, if any, designations should be removed. Trump could also shrink a monument’s area protected from mining or drilling. That’s relevant to Bears Ears, which contains uranium, oil, and gas deposits. “It’s undisputed the president has the authority to modify a monument,” Zinke said.
Though not a win for environmentalists, Trump’s order is at least a tacit acknowledgment of the legal and political challenges in revoking national monument status. It also delays the court fight desired by some of the loudest critics of the Bears Ears designation, including Bishop and Chaffetz. To bolster their case, they had teamed up with Todd Gaziano, executive director of the Pacific Legal Foundation, and John Yoo, a law professor at the University of California at Berkeley who wrote the so-called torture memos authorizing the George W. Bush administration’s use of “enhanced interrogation techniques.”
In a March report published by the American Enterprise Institute, Yoo and Gaziano gave legal ammunition to Trump, writing that “No president can bind future presidents in the use of their constitutional authorities.” They called the 1938 Cummings opinion “poorly reasoned” and “erroneous.” Says Gaziano, “We think the ground is very strong for a president to revoke.” Though Trump’s order stops short of revoking Bears Ears’ monument status, Gaziano says the White House is simply taking its time and that the directive to the Interior Department “should be seen as an affirmation of the authority John Yoo and I argue they possess.”
Not everyone agrees. Advocates working to protect Bears Ears, including indigenous tribes, conservationists, and a coalition of outdoor recreation companies, have circulated a memo from the Washington law firm Arnold & Porter Kaye Scholer that reaffirms that 1938 opinion.
The bottom line: President Trump stopped short of revoking the national monument status President Obama bestowed on 1.35 million acres in Utah.
To contact the authors of this story: Esmé E Deprez in Los Angeles at edeprez@bloomberg.net, Ari Natter in Washington at anatter5@bloomberg.net.
To contact the editor responsible for this story: Matthew Philips at mphilips3@bloomberg.net.
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