Loyola University Chicago School of Law, JD 2019
After an executive order for review of designations under the Antiquities Act, the Department of Interior to review 27 different national monuments, a leaked internal memo revealed a plan to reduce the size of four national monuments. One of the reductions, recommended by Secretary Zinke, was the shrinking of Bears Ears National Monument. Senator Hatch of Utah since confirmed the whispers; in a conversation with Senator Hatch, President Trump revealed his plans to downsize multiple monuments in Utah, including Bears Ears. This action has raised questions about whether a president, under the Antiquities Act of 1906, is allowed to shrink national monuments.
The recommendations on Bears Ears created further controversy because of the change in protections to a relatively newly protected area.
History of Shrinking Monuments
A president shrinking national monuments is not unheard of. In the 111 years since the enactment of the Antiquities Act, boundaries of national monuments have been trimmed or redrawn 18 times; but never has a president tried to eliminate an entire monument. Furthermore, no president has tried to make any boundary adjustments since 1964.
In 1915 President Woodrow Wilson reduced the size of Washington state’s Mount Olympus National Monument, in order to account for the urgent need of timber brought on by World War I. That change was short lived, and the area was, once again expanded and renamed the Olympic National Park in 1938. In 1932, President Truman reduced Great Sand Dunes National Monument in Colorado by 25%. The most recent presidential action to shrink a national monument was done by President Kennedy. In 1964, President Kennedy changed the boundaries of Utah’s Natural Bridges, reducing it by 320 acres.
However, while previous changes were made out of public necessity or national emergency, the proposed changes have been described as a way to give states more control over the way their land is managed, and a removal of federal control. The Executive Order states the review of these areas is necessary to ensure they were not created without proper coordination with State, tribal, and local officials. The intention of the Antiquities Act to serve interests of historical preservation, preservation of natural resources, and protection of natural beauty creates a question as to whether removing protections for the reasons stated is appropriate, or even allowed. Further, while others have reduce the boundaries of some monuments, the legislation supporting the reduction is not clear in presidential authority to do so.
Legislative Challenges to Changing National Monuments
Throughout this nation’s history of the shrinking of national monuments, none of the changes have ever been challenged in court. A likely reason that none the previous changes were litigated is that they all occurred prior to the passing of the Federal Land Policy and Management Act of 1976 (FLPMA).
Under FLPMA, the Secretary of the Interior may recommend protections for new monuments. These protections may then be accepted by the president, effectively creating new monuments under the Antiquities Act. However, Congress is also reserves the power to reduce national monuments under FLPMA. However, it is unclear whether this power is shared by the Executive Branch, as the power to shrink monuments is not explicitly restricted to Congress. Until challenged in the courts, the true impact of FLPMA remains unknown.
Bears Ears Controversy
Prior to leaving office, President Obama created Bears Ears National Monument in 2016 under the authority of the Antiquities Act. Previously, the area was forest land under state management. The rich Native American history of the area, and the desire to preserve historical artifacts within its boundaries, drove President Obama’s decision to protect this area.
The protected area is on the border of Canyonlands National Park and other monuments and recreational areas in San Juan County, Utah. A majority of the San Juan county land surrounding Bears Ears is managed by the Bureau of Land Management, Indian tribes, National Park Service, and Forest Service. According to the USDA’s Natural Resource Conservation Service, only 16% of the county is under state or private management.
Under Interior Secretary Zinke’s recommendations, the area of Bears Ears would return to state management, with a request to Congress for tribal co-management of the area. This plan would allow for the area to be used for commercial use, such as drilling, mining, and livestock grazing. Some see an action to reduce the park as a direct blow to President Obama’s environmental legacy and a threat to the sacredness of the area to the surrounding tribes. However, a recent poll shows that Utah residents are torn on the issue. Supporters of shrinking the monument, including Senator Hatch, feel that placing the land under state management allows for better ways to protect the sacred antiquities within the boundaries. Some supporters even see the land protections as unnecessary, and look forward to the opening of the area for more uses.
Opponents of the shrinking of Bears Ears argue that shrinking the boundaries of the monument goes against the purpose of the Antiquities Act. The Act was created to prevent vandalizing and looting of ancient Native American sites; as President Obama recognized, Bears Ears is rich with Native American history and artifacts. The reduction effort is viewed as an attack on conservation of the nation’s history and an attempt to erase the Native American heritage that is currently protected by the national monument designation.
Outdoor recreation groups, environmental groups, as well as tribal groups have expressed their intent to fight for preservation. The decision to shrink Bears Ears is expected to be challenged in court, and will test the limits of Presidential authority under FLPM and the Antiquities Act. The battle over Bears Ears will determine the future precedent for the shrinking of national monuments by the President.