Since taking office in January, President Trump has signed 25 executive orders and recent media reports suggest that he is not done yet. The Salt Lake Tribune reported on Sunday that Trump will sign an executive order this week mandating that the Department of the Interior examine all national monument designations in the past 21 years to discern whether their size and scope are within the intent of the Antiquities Act.
I wrote about the Antiquities Act last year on this blog. The 1906 law, which was spurred by the looting of Native American cultural sites, gives the president the authority to protect existing federal lands (and voluntarily provided state and private lands) that contain sites of “historic or scientific interest.” The law has come under fire from some Republican members of Congress who argue that the president should not be able to protect lands as monuments without consulting them. The irony is that Congress gave the president this authority by passing the law, and it did this precisely because it knew—even back in 1906—that the time it takes to reach consensus in Congress on such matters is too slow.
Two monuments created by President Obama in December 2016, Bear’s Ears in southern Utah and Gold Butte in the Mojave Desert in Nevada, are the main reason why this issue has risen to the level of an executive order in 2017. Of the two, Bear’s Ears is the more contentious, if only because the Utah congressional delegation as well as the state’s governor have been vocal about their displeasure with it. The site, which encompasses 1.35 million acres, borders Canyonlands National Park and Glen Canyon National Recreation Area and is home to more than 100,000 archaeological sites. The two 9,000-foot buttes—the “bear’s ears”—and the surrounding landscape are considered traditional sacred lands by several Native American tribes in the region. Utah Congressional Representatives Rob Bishop and Jason Chaffetz have been calling on Trump to rescind the Bear’s Ears monument designation since Trump took office. They and several other elected officials from Utah have labeled the designation a “land grab” and a “midnight monument.” Similar language was used over 20 years ago when President Clinton created Grand Staircase-Escalante National Monument, a 1.7 million acre site in southern Utah. The 21-year timeline in the forthcoming executive order is no accident—it means Interior’s review will have to cover Grand Staircase-Escalante.
Whether a sitting president has the authority to rescind a national monument created by his predecessor, as Bishop and Chaffetz have called for, appears to be an unsettled legal question. Some legal scholars argue that the president does have the authority while others maintain that because the Antiquities Act does not expressly provide it, the authority resides only with Congress. These murky legal waters are undoubtedly the reason why the forthcoming executive order simply requires studying the size and scope of national monuments rather than attempting to abolish any of them outright. Such a move would almost certainly lead to lawsuits and tie the issue up in court for years. The prospect of this alternative makes the forthcoming order a reasonable one, in my view. A review by the Department of the Interior, if done in a rigorous and thoughtful way, could be useful. For one thing, compiling and maintaining documentation for each the monuments, including detailed mapping of specific sites, would be good practice and might provide a template for future designations. And independent and balanced analyses of the benefits and costs of alternative monument boundaries could clarify the extent to which monument size is really an issue and, if so, why. Going back 21 years—which covers 57 monument designations—suggests that the department has its work cut out for it, however.
In the bigger picture, the national monuments controversy is just one of many problems facing our nation’s public lands. There are long-simmering disputes over allowable uses of the lands—including conflicts over livestock grazing, oil and gas development, forestry, mining, outdoor recreation, and wilderness designations. And in recent years, several western state legislatures and some members of Congress, including Utah’s Bishop, have proposed a wholesale transfer of federal lands to the states. There are also problems related to funding for public lands. The National Park Service’s $12 billion deferred maintenance backlog gets the most attention, but other agencies, including the Bureau of Land Management and Forest Service, may have more serious problems. The Land and Water Conservation Fund (LWCF), which is used for acquisition of new conservation lands, is also facing difficulties. Some members of Congress and others are pushing for the LWCF (which is funded through offshore oil and gas lease revenues) to be used for the deferred maintenance problem, much to the dismay of the conservation community.
Underpinning many of these issues is the changing nature of the US economy and the socio-demographics of the western United States. The traditional natural resource production values associated with public lands—mining, agriculture, and forestry—are declining relative to conservation and recreation values. While such shifts are often a natural component of economic growth, they can create winners and losers on the landscape. They also may be deepening a divide between urban and rural populations and between those on the East and West of the nation. Even in communities that benefit economically from outdoor recreation amenities, there can be discomfort with the tourism that comes along with those amenities. And the income from tourism and recreation jobs often does not match that lost in the mining sector. Spikes in real estate prices are another issue in some communities, especially those located near some of the most beautiful natural amenities. These increases are often driven by demand from outsiders for second homes and can push prices out of reach for locals.
The Department of the Interior’s review of national monuments—if done well—could be one useful piece of analysis, but it only scratches the surface of what needs attention. The United States is unique among developed countries in having public lands available for all Americans to use in a multitude of ways. But without the care and focus these issues deserve, public lands conflicts are not going away any time soon.
