President Trump’s national monument rollback is illegal and likely to be reversed in court

On Dec. 4, President Trump traveled to Utah to sign proclamations downsizing Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by nearly 50 percent. “[S]ome people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” Trump said. “And guess what? They’re wrong.”

Native American tribes and environmental organizations have already filed lawsuits challenging Trump’s action. In our analysis as environmental and natural resources law scholars, the president’s action is illegal and will likely be overturned in court.

Contests over land use

Since 1906 the Antiquities Act has given presidents the authority to set aside federal lands in order to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

[embedded content] History of the Antiquities Act.
When a president creates a national monument, the area is “reserved” for the protection of sites and objects there, and may also be “withdrawn,” or exempted, from laws that would allow for mining, logging or oil and gas development. Frequently, monument designations grandfather in existing uses of the land, but prohibit new activities such as mineral leases or mining claims.

Because monument designations reorient land use away from resource extraction and toward conservation, some monuments have faced opposition from local officials and members of Congress. In the past two decades, Utah has been a flashpoint for this debate.

In 1996 President Clinton designated the Grand Staircase-Escalante National Monument, a region of incredible slot canyons and remote plateaus. Twenty years later, President Obama designated Bears Ears National Monument, an area of scenic rock formations and sites sacred to Native American tribes.

Utah’s governor and congressional delegation have long argued that these monuments are larger than necessary and that presidents should defer to the state about whether to use the Antiquities Act.

Zinke’s review

In April President Trump ordered a review of national monuments designated in the past two decades. Trump directed Interior Secretary Ryan Zinke to recommend steps to eliminate or shrink these monuments or realign their management with Trump administration priorities.

Secretary Zinke’s review was an arbitrary and opaque process. During a rushed four-month period, Zinke visited only eight of the 27 monuments under review. At the end of the review, the Interior Department released to the public only a two-page summary of Zinke’s report.

Interior Secretary Ryan Zinke visiting Bears Ears National Monument, May 9, 2017. DOI, CC BY-SA
In September the Washington Post published a leaked copy of Zinke’s detailed recommendations. They included downsizing, changing management plans or loosening restrictions at a total of 10 monuments, including three ocean monuments.

Trump’s proclamations

Trump’s proclamations on Bears Ears and Grand Staircase-Escalante note the long list of objects that the monuments were created to protect, but claim that many of these objects are “not unique,” “not of significant scientific or historic interest,” or “not under threat of damage or destruction.”

As a result, Trump’s orders split each monument into smaller units, excluding large tracts that are deemed “unnecessary.” Areas cut from the monuments, including coal-rich portions of the Kaiparowits Plateau, will be reopened to mineral leasing, mining and other uses.

In our view, Trump’s justification for these changes mischaracterizes the law and the history of national monument designations.