Lawsuits, legal challenges, and quite possibly, a U.S. Supreme Court case — that’s the legacy President Obama’s leaving behind with his just-announced designation of two new national monuments, the 1.35 million-acre Bears Ears in Utah and the 300,000-acre Gold Butte in Nevada.
Why? Environmentalists, conservatives, Native Americans, and those on the political Left may have cheered Obama’s lame-duck designations, which came by the authority of the Antiquities Act of 1906. But landowners aren’t happy, and neither are state and local governments.
“Where is it written that a president on a land issue can bind all future presidents? That’s insane.”
Utah Attorney General Sean Reyes announced his office is working with federal and state authorities to file a lawsuit, challenging the scope of Obama’s designation. If that doesn’t work, Reyes said congressional members in Washington, D.C., could perhaps defund or rescind the monuments — and if all else fails, he’s looking to President-Elect Donald Trump for help. Meanwhile, Arizona Gov. Doug Ducey just announced his intent to sue if Obama follows through with another proposed monument spanning 1.7 million acres in his state — this one called the Greater Grand Canyon National Monument.
“Our state needs no further designations,” Ducey said, in a terse statement reported by local media.
He has a point. Roughly 85 percent of Nevada is owned by the federal government; in Utah, it’s around 65 percent.
But legally speaking, what can a good Antiquities Act opponent do?
Well, as it turns out, quite a bit.
"I think President Trump has plenty of power to vacate the illegal actions of President Obama with regard to the monument decrees," said William Perry Pendley, president and chief legal officer of the Mountain States Legal Foundation.
Still, any attempt by Trump to outright toss the designations would probably end at the U.S. Supreme Court's steps, he warned. But if that's the case: good news for private property rights advocates.
"I expect the court will rule in Trump's favor," he said. "Where is it written that a president on a land issue can bind all future presidents? That's insane."
The Antiquities Act allows presidents to declare unilaterally lands as national monuments in order to keep historic landmarks, structures, and objects from destruction or looting. But Section 2 makes clear the monument areas "shall be confined to the smallest area compatible with proper care and management of the objects to be protected."
In other words, a president is limited by how much land can be included in a national monument.
And that's a stipulation that's frankly been overlooked, said Pendley.
"Unfortunately, presidents — mostly Democrats like Carter, Clinton, and Obama — have violated the act in the most outrageous manner," he said. "It is time someone put an end to it. I am hopeful President Trump will do just that."
History shows Trump has a high wall to climb. Court cases challenging national monuments have repeatedly ruled in favor of the designation. And a Congressional Research Service report from November 2016 entitled "Antiquities Act: Scope of Authority for Modification of National Monuments," makes clear no president in U.S. history has ever voided a previous national monument designation. In fact, President Franklin Roosevelt in 1938 mulled abolishing the Castle-Pinckney National Monument in South Carolina, but learned rather quickly that prevailing legal minds found no authority for him to do so. He quickly abandoned the idea.
"But Congress later abolished it by statute," the CRS reported, clarifying that Congress can indeed "undo" national monument designations.
Presidents, meanwhile, may not have historical basis for doing the same. But they have other means at their disposals that have proven successful in reeling in the scope of the monuments.
As CRS noted: "Presidents have deleted acres from national monuments, proclaiming that the deleted acres do not meet the Antiquities Act's standard that the protected area be the 'smallest area'" needed to protect the historical properties. CRS also said presidents "can modify the management of national monuments," and put, say, a state entity in control of the land, rather than the National Park Service. That's not been fully tested by courts – but really, so what?
Aren't legal opinions formed on the basis of which argument proves strongest at the time?
"In short, Trump has discretion under the Antiquities Act to completely eliminate prior national monuments, significantly shrink the land withdrawn for such monuments, or remove some restrictions from the use of the land dedicated to a monument," said Todd Gaziano, executive director of Pacific Legal Foundation's DC Center and a senior fellow in constitutional law. "His discretion is as broad as the previous presidents, especially if it is to correct abuses relating to the excessive size of prior monument designations."
Seems all that's needed is a president with will — and with the boldness to act.
"I would be surprised such a designation is permanent," said Herb Titus, a constitutional and common law scholar for the William J. Olson law firm.