Speak Up for Our Monuments

The Department of Interior is soliciting public comments on our national monuments as it considers potential steps to revoke or undermine protections for these natural treasures.  All you have to do is visit the Regulations.gov website here and express your support for the monuments under review, ranging from Mojave Trails to Bears Ears.  You can write a sentence, or you can attach a document with more detailed comments.  Any comment helps!

Here is what I submitted:

Dear Secretary Zinke:

I am an outdoor enthusiast and father of a one-year-old daughter who I hope will have the same opportunities that I and our ancestors have had to enjoy the natural beauty of America. I am writing in support of our national monuments; each of the monuments currently under review should be protected for future generations to enjoy.  I believe that the public statements made by President Trump in support of altering monuments at the signing of Executive Order 13792 establishes a presumption that certain monuments should be reduced in size or their protections undermined, without either the Department of Interior or the President having the necessary authority to execute such a recommendation. If such changes were to be made, the President and Interior would violate the Federal Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. Ch. 35) and the Constitution, and endanger the wildlife and cultural artifacts found within the monuments. I oppose any efforts by the President and Department of Interior to alter any of the current monuments’ protections.

President and Secretary of Interior May Not Modify or Revoke Monuments

Any of Interior’s recommendations regarding modification of the monuments stemming from its review would not be actionable by the Executive branch. Neither the Antiquities Act of 1906 nor the FLPMA authorize the President or Interior to reduce or eliminate national monuments, or change the original prescriptions for managing the monuments set forth in the establishing proclamations.

The Antiquities Act of 1906 delegates to the President the authority to create national monuments, but does not explicitly convey any power to change previous monument designations.  Congress solidified this interpretation of the limits of the President’s authority over previous monument designations when its passed the FLPMA.  Section 204 (j) of the FLPMA denies the President and Secretary of Interior any power to revoke or modify the monuments, including the terms of the original proclamations establishing each monument.  The FLPMA specifically reserves for Congress the power to revoke or modify monuments established by Presidents. 

Although Section 204 (j) does not mention the President explicitly, the legislative history of FLPMA makes clear that the intent of Congress was to also restrict the President’s authority to challenge a predecessor’s proclamation under the Antiquities Act.^[1]  When the FLPMA was reported to the House for consideration, Section 204 was described as follows:

“It would also specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act and for modification and revocation of withdrawals adding lands to the National Wildlife Refuge System.” ^[2]

Monument Review Violates Separation of Powers

The President’s Executive Order seeks to undermine the separation of powers by setting the stage for the President to decide on matters that fall squarely under the purview of Congress and the courts.  Even if one assumes that the FLPMA leaves some ambiguity regarding the intent of Section 204 (j) to limit the President’s ability to retroactively revoke or downsize previously established monuments, the Congressional and judicial record provide no power to the President to conduct the sweeping review of monuments outlined in the Executive Order based on criteria already addressed by Congress and the courts.  Rather than “to take care that the laws be faithfully executed,” the President is attempting to re-write them and make decisions in a field thoroughly occupied by the Congress and courts.[3]  

Executive Order Attempts to Usurp Congress’ Constitutional Authority Over Public Lands

The Constitution affords Congress, not the President, the power of proprietor and legislature over public lands.[4]  Through passage of the Antiquities Act, Congress delegated authority to the President to create monuments, and managing those lands according to the establishing proclamation through the responsible government agency (Bureau of Land Management, Forest Service, National Park Service, or National Oceanic and Atmospheric Administration).  Congress has not delegated any authority to the President to revise previously established monuments, and the FLPMA reserves that power to Congress.  Yet, the Executive Order presumes Congress has been silent on issues arising out of previous Presidents’ use of the Antiquities Act.

The Executive Order takes issue with aspects of national monuments established over the past two decades, implying that some monuments “create barriers” to energy development, “restrict public access,” and “curtail economic growth.”  These are complaints levied by some against monuments that are nearly as old as the Antiquities Act itself.  And over the lifetime of the Antiquities Act, Congress has exercised its role as the nation’s “proprietor” of public lands and overseer of Presidential use of the Act.  Congress has passed legislation to remedy some concerns with the President’s ability to establish monuments, but has examined other complaints and decided not to act.

For example, Congress stepped in when it determined that President Carter’s broad use of the Antiquities Act created problems and passed the Alaska National Interest Lands Conservation Act ANILCA, (P.L. 96-487, 1980).  The law required Congressional approval for monuments larger than 5,000 acres in Alaska.  In 1950, Congress converted the controversial Jackson Hole National Monument into a national park (Grand Teton), but then limited future Presidents’ ability to establish monuments in Wyoming.

                                                   

Perhaps most significantly, Congress streamlined a number of public land laws and clarified authorities delegated to the President and Secretary of Interior when it passed the FLPMA in 1976. The FLPMA repealed several laws that previously granted Presidents authority to withdraw public lands, and clarified under what circumstances the Secretary of Interior could establish, modify or revoke withdrawals.  The FLPMA, however, did not repeal the Antiquities Act, nor did it take the opportunity to limit the scope of the President’s discretion to create national monuments under the Act.  Congress made this decision not to amend the Antiquities Act after decades of Presidential use of the Act to establish millions of acres of monuments.  Furthermore, no President has downsized or revoked a monument established by another President since passage of the FLPMA.  

Thus, Congress has spoken numerous times on the establishment of national monuments since 1906, and each time with plain view of the complaints enumerated in President Trump’s Executive Order.  Congress has long acquiesced to the President’s discretion to establish monuments – even those well over 100,000 acres[5] -- and has stepped in when that discretion departed from Congress’ expectations.  In effect, Congress has retained its Constitutionally-derived authority over public lands, including the monuments.  There is no room for President Trump to challenge Congress’ authority over previously-established monuments.

Executive Order Attempts to Supplant Judicial Review

Neither the Constitution, Congress, nor the courts have given the President the ability to judge the legality of previously established monuments. The authority vested in the President to create national monuments is derived from Congress delegating its legislative authority, and the courts have tossed out challenges to the President’s ability to establish national monuments.  The Executive Order directly challenges court rulings, revisiting grievances already heard and tossed out by the courts against existing monuments.

The Executive Order implies that previous Presidents violated the Antiquities Act by establishing monuments that are too large or because they conflict with other commercial and industrial uses, ignoring a history of judicial review of these concerns.  The Executive Order also implies that the President is taking up the case of would-be plaintiffs, and vaguely describing grievances against the monuments.  The Executive Order directs Interior to review the “concerns of State, tribal, and local governments affected by a designation, including the economic development and fiscal condition of affected States, tribes, and localities.” 

The Executive Order especially targets Bears Ears National Monument in Utah and sets a shorter timeframe for Interior's review of this monument, implying a sense of urgency to remedy concerns.  The Administration's own public statements also suggest that the President seeks to adopt the powers of the judiciary to judge and remedy perceived violations of the Antiquities Act.  During the ceremony to sign the Executive Order on April 26, 2017, President Trump stated:

"In December of last year alone, the federal government asserted this power [the Antiquities Act] over 1.35 million acres of land in Utah known as Bears Ears … over the profound objections of the citizens of Utah...The Antiquities Act does not give the federal government unlimited power to lock up millions of acres of land and water, and it is time we ended this abusive practice."

The Supreme Court has repeatedly upheld the President’s wide discretion to establish national monuments, including challenges to a President’s ability to protect large swaths of land and the resources upon and beneath those lands.[6] In fact, President Theodore Roosevelt used the Antiquities Act to protect over 808,000 acres of the Grand Canyon in 1908 – just two years after passage of the Act – and the Supreme Court upheld Roosevelt’s monument designation in the face of a legal challenge by someone that complained that the monument restricted other uses, including commercial uses.

In 2003, the Supreme Court ended a legal challenge by Mountain States Legal Foundation against a handful of national monuments designated by President William Clinton, including some that President Trump’s recent Executive Order has identified for review.  In the case, Mountain States argued that “the [President Clinton’s] Proclamations' nature, size, and scope facially contravene Congress's limited purpose, which was to preserve rare and discrete man-made objects, such as prehistoric ruins and ancient artifacts, Mountain States further contends that the Presidential actions violate other statutes governing the withdrawal of land from public use and the protection of environmental values on federal land.”[7] The United States Court of Appeals found that Mountain States presented no facts to indicate that the President exceeded his authority to establish monuments under the Antiquities Act, and that Mountain States’ claim that the size of the monuments were too large “fails as a matter of law in light of Supreme Court precedent interpreting the Act to authorize the President to designate the Grand Canyon and similar sites as national monuments.”

In short, the courts have recognized the broad discretion afforded to the President to justify establishment of new national monuments.  The Executive Order seeks to revisit these court opinions and conduct an executive inquiry into alleged violations of the law.  In challenging the judicial record, the President is also failing his duty to take care that the laws are faithfully executed.

Monuments Protect Objects of Significant Historic and Scientific Interest

The public should not be asked to defend the merits of each of the monuments under review by the Executive Order because the President and Interior do not have standing to conduct such a review in the first place, as explained above.  Despite this, I submit the following comments to highlight the great landscapes and objects protected by the national monuments targeted by President Trump, and as evidence for why the President cannot be entrusted with the power to undo protections for lands that we deem sacred.  Congress has bestowed on the President the power to save landscapes and objects from potential ruin, but it has not bestowed on any single individual the terrible power to undo these protections based on personal preferences or political winds.

Although I only provide specific comments on a handful of monuments below, each of the monuments under review indeed protects “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest,” consistent with the requirements of the Antiquities Act of 1906.  It should be no surprise that these landscapes are of scientific or historical interest.  Increasing demands on public lands and the loss of wildlands across the globe have made the remaining tracts of intact wildlands and historical artifacts even more important.  Demand for these places is going up, and supply is going down.  While their value remains priceless, our sense of urgency to protect them is climbing.  It is no question as to why Presidents of both major political parties have felt compelled to use the authority delegated to them by Congress to protect these landscapes.

Bears Ears National Monument is probably too small to protect the natural and historical significance of this region of Utah and should be expanded. The existing monument protects more than 100,000 cultural sites, including nearly 5,000 Native American pictographs and petroglyphs.  It also protects rich paleontological resources in Bears Ears, including some being studied to better understand the transition life on Earth from reptiles to mammals. Bears Ears Monument maintains habitat for a very diverse range of wildlife species, including15 species of bats, golden eagles, the threatened Mexican spotted owl, the Utah night lizard, and badgers.  The monument continues to provide for multiple uses, including hiking, camping, photography, stargazing, cultural education, and 4x4 touring. 

Basin and Range National Monument in Nevada protects a landscape encompassing the transition between the Mojave Desert and the sagebrush-studded Great Basin Desert.  The monument includes Native American historical sites, caverns, and a great biodiversity of desert-dwelling species, including sage grouse, pronghorn, the rare pygmy rabbit, Great Basin spadefoot toads, golden eagles, and ferruginous hawks. At the lower elevations visitors can find Engelmann's hedgehog cactus, Mojave kingcup cactus, and spinystar.  At the upper elevations visitors enjoy Utah juniper and quaking aspen, and even bristlecone pine.  The monument supports multiple uses, including rock climbing, rock hounding, wildlife viewing, camping, hiking, stargazing, motorized-vehicle touring, and hunting.

Gold Butte National Monument in southern Nevada contains a number of historical and natural wonders, including the famous “Falling Man” rock art site, and rock shelters among the Aztec Sandstone formation.  The sandstone formations themselves are geologically significant, including clusters of formations carved by the elements over the centuries, such as the area in the monument known as “Little Finland.”  Once considered, extinct, the relict leopard frog can be found in riparian habitat in the monument.  Las Vegas bearpoppy and Las Vegas buckwheat are also found in the monument, and are among the amazing desert plants able to thrive in the harsh gypsum soils of the area.  The monument supports multiple uses.  A network of designated routes allows for motorized vehicle touring and access, and the amazing sites and wildlife attract individuals seeking an escape from the city to enjoy camping, hiking, photography, mountain bike riding, and learning about the Gold Butte region’s amazing history.

Grand Staircase-Escalanate National Monument encompasses an amazing landscape in southern Utah that should be protected for this and future generations to enjoy.  The region is a contact point for the Anasazi and Fremont people and provides a wealth of opportunities for archeological study.  There are hundreds of recorded sites of Native American artifacts, including rock art panels, granaries, and campsites.  The monument also encompasses five life zones, ranging from deserts at the lower elevations to the coniferous forests at the monument’s upper reaches.  The monument protects ecosystems that are easily disturbed and slow to recover, including relict grasslands of No Mans Mesa and pinyon-juniper communities that may be as old as 1,400 years.  The monument supports multiple uses, including camping, climbing, horseback riding, motorized-vehicle touring, photography, and river-running.

Mojave Trails National Monument protects vast historical and natural wonders of the Mojave Desert.  Pottery, petroglyphs and milling stations of Native Americans can be found in the monument, as well as a long portion of the Chemehuevi’s Salt Song Trail.   Other sites of sacred significance are protected within the monument’s boundaries among the Piute and Old Woman Mountains.  The monument also protects the longest remaining, undeveloped stretch of Historic Route 66, the first paved road to connect both coasts of the United States.  General Patton trained troops on desert lands here to fight the Nazis in North Africa during World War II.  The monument now protects artifacts and campsites left over from these training maneuvers. The monument also provides an opportunity to study the habitat connectivity of desert wildlife, including bighorn sheep and desert tortoise.  The rare white-margined beardtongue can be found here, and other wildflowers are known to bloom in a riot of color in after sufficient rainfalls, including among the volcanic rock of the Amboy and Pisgah areas.  The monument also protects the largest and densest population of Bigelow cholla cactus. The monument provides for multiple uses, including 4x4 touring, 2WD touring, camping, hiking, stargazing (including some of the best night sky resources in southern California), rock hounding, and wildlife viewing.

Organ Mountains – Desert Peaks National Monument protects an amazing Chihuahua Desert landscape in southern New Mexico, encompassing habitat for a range of wildlife species, and a wealth of sites of paleontological, geological, cultural and historical significance.  Rock art sites dot the landscape, and fossils of ground sloths can be found in the monument.  The monument also protects sites of historic battles between Native Americans and Spanish, Mexicans and Americans, and between Union and Confederate troops.  The endemic Organ Mountain evening primrose, and also soap tree yucca and alligator juniper are protected by the monument’s designation.  The monument supports multiple uses, including hiking, camping, photography, stargazing, cultural education, and 4x4 touring. 

Papahanaumokuakea Marine National Monument protects an area of the Pacific Ocean that is home to marine wildlife species that roam a vast portion of the monument, including Laysan and Black-footed albatross and 24 species of whales and dolphins.  The monument also protects an area of spiritual significant in Hawaiian culture.  The monument “contains the boundary between Ao, the world of light and the living, and Pō, the world of the gods and spirits from which all life is born and to which ancestors return after death.”  The monument is also the final resting place for nearly 3,000 people that perished during the naval portion of the Battle of Midway, which occurred 200 miles from the Midway Atoll.  The monument supports multiple uses, including non-commercial fishing, voyaging and wayfinding, wildlife viewing, sailing, stargazing, diving, and shipwreck exploration.

Sand-to-Snow National Monument in southern California protects a diverse landscape spanning a 10,000 foot elevation distance from the desert habitat at lower elevations to the tallest peak in southern California.  It protects the San Bernardino Kangaroo rat and Mountain Yellow-legged frog.  It also protects habitat for the threatened Santa Ana sucker, Coachella fringe-toed lizard, and desert tortoise.  Amazing plant diversity includes the California dandelion, Coachella Valley milk-vetch, Cushenbury buckwheat, Cushenbury oxytheca, pedate checker-mallow, San Bernardino bluegrass, San Bernardino Mountains bladderpod, Santa Ana River woolly-star, slender-petaled mustard, and triple-ribbed milk-vetch and the threatened ash-grey paintbrush, Bear Valley sandwort, Parish's daisy, and Southern Mountain wild-buckwheat.  The monument encompasses the territory and artifacts of Native Americans that were forcibly removed by Spanish explorers.  The Black Lava Butte area also contains an estimated 1,700 separate petroglyphs among the basaltic lava flows. The monument supports multiple uses, including mountain bike riding, camping, hunting, winter sports, horseback riding, bird watching, and hiking.

San Gabriel Mountains National Monument protects a rugged mountain landscape at the doorstep of southern California’s urban areas, contains habitat for iconic wildlife and preserves a rich history of human inhabitation spanning from Native American peoples to Mexican rancheros and Euro-American prospectors.   The monument is also a haven for scientific discovery, including the site of advancements in astronomy and hydrology. The monument protects habitat for the threatened California red-legged frog, endangered mountain yellow-legged frog, and the California condor.  Joshua trees grace north-facing slopes at one edge of the monument, and a mix of conifers can be found at the higher elevations.  The monument supports a number of uses, including camping, hiking, mountain climbing, swimming, photography, touring, fishing, cycling, and wildlife viewing.

Vermillion Cliffs National Monument in Arizona protects nesting grounds for the endangered California condor, Native American artifacts, and amazing geological formations, including “the Wave,” a world famous site.  The red rock cliffs overlook the Colorado River and were traversed by early Mormon and Spanish explorers.  “The Maze” is a rock art site in the monument with labyrinth designs created by the Anasazi people. Welsh’s milkweed is a beautiful and rare plant protected by the monument that grows on sand dunes.  The monument also falls within some of the best dark sky resources in the United States, protecting land from which we can view the night sky without obstruction of light pollution.  The monument supports multiple uses, including stargazing, camping, 4x4 touring, hiking, photography, wildlife viewing, and more.

These and other monuments protect amazing American landscapes, our cultural heritage, historical and geological wonders, and a rich diversity of wildlife.  They should be left intact and managed to protect these qualities for all generations to enjoy and explore.

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^[1]Squillace, Mark Stephen and Biber, Eric and Bryner, Nicholas S. and Hecht, Sean B., Presidents Lack the Authority to Abolish or Diminish National Monuments (May 13, 2017). 103 Va. L. Rev. Online (2017); UCLA School of Law, Public Law Research Paper No. 17-16; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2967807. The paper shows that the plain language of Section 204 (j) identifies the Secretary of the Interior and not the President because of an error in how the legislation was revised.  Earlier versions of the FLPMA sought to consolidate all withdrawal authority under the Secretary of Interior, including the President’s authority under the Antiquities Act.  The provision that would have transferred that authority from the President to Interior was later dropped by a Subcommittee, but Section 204 (j) was not modified.  However, the Report to the House that accompanied the bill clearly expresses the intent of Section 204 (j).

^[2]Ibid, p. 5

[3] See Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. at 610. “The duty of the President is to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” (quoting Myers v United States, 272 U.S. 52, 177 (1926)

[4] Article 4, Section 3, Clause 2 of the US Constitution; also see Camfield v. United States, 1897.

[5] President Theodore Roosevelt established Grand Canyon National Monument in 1908, encompassing over 808,000 acres and prompting concerns by private and commercial interests.  Katmai National Monument was established by President Wilson in 1918 and encompassed 1,088,000 acres.  Thus, the 100,000 acres threshold arbitrarily identified in Executive Order 13792 challenges monument sizes that date back essentially to the creation of the Antiquities Act itself.  

[6] Cappaert v. United States, 426 U.S. 128 (1976), the Supreme Court upheld the President’s ability to proclaim a national monument and reserve water rights necessary to sustain the Devil’s Hole pupfish population in Nevada.  Separately, Cameron v. United States

252 U.S. 450 (1920) also reinforced the President’s discretion to withdraw public lands from certain uses to protect objects of scientific interest.  In this case, that object was the Grand Canyon.

[7] Mountain States Legal Foundation v. Bush, in his official capacity as President of the United States of America 2002., <http://caselaw.findlaw.com/us-dc-circuit/1160787.html>

Cadiz Dunes in Mojave Trails National Monument at sunset.