National Monuments Under Review: A Look at the Trump Administration s Executive Order on the Antiquities Act

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1 WEBINAR Photos Credit: Josh Ewing National Monuments Under Review: A Look at the Trump Administration s Executive Order on the Antiquities Act Robert Rosenbaum, Josh Ewing, Barb Pahl and Janelle DiLuccia JUNE 21, 2017 Preservation Leadership Forum

2 Speakers Robert Rosenbaum, retired Litigation Partner, Arnold & Porter Kaye Scholer Josh Ewing, Executive Director, Friends of Cedar Mesa Barb Pahl, Senior Vice President of Field Services, National Trust for Historic Preservation Janelle DiLuccia, Associate Director of Public Lands Policy, National Trust for Historic Preservation Preservation Leadership Forum 2

3 Defending the Antiquities Act Barb Pahl National Trust for Historic Preservation

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7 Advocate for landscape level protection of cultural resources Comb Ridge, UT

8 Bears Ears National Monument, SE UT

9 9 Executive Order 13792: Review of Designations under the Antiquities Act

10 National Monuments Under Review Robert Rosenbaum Arnold & Porter Kaye Scholer Photo Credit: Josh Ewing

11 The Antiquities Act of 1906 (a) The President may, in the President s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments. (b). The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. Preservation Leadership Forum 11

12 Monument Opponents Arguments What a president can do unilaterally, another president can undo implied power to revoke, resize or otherwise modify a prior monument designation Even if not revoke, power to resize or modify or to correct designations that violate the terms or intent of the Act Preservation Leadership Forum 12

13 Trump & Zinke Trump and Zinke seem to claim that the Act was intended to protect only small areas and possibly limited to historic objects. Trump Stresses original objectives of the Act as to size (see Yoo and Gazinao) Opposes restrictions on public access and use, including for energy development Emphasizes multiple use under FLPMA Preservation Leadership Forum 13

14 Trump & Zinke Zinke Interim Report on Bears Ears The designation doesn t fully conform to Trump policies Act is not intended to protect landscape monuments that reserve large areas for the purpose of restricting public access and traditional uses Recommends that it is more appropriate to identify and separate the areas that have significant objects to be protected to meet the purposes of the Act identify the objects and segregate them into such separate areas to concentrate preservation resources. Therefore revise boundary as yet unstated how and where Preservation Leadership Forum 14

15 Why They Are Wrong About the Act s Scope Almost 100 years ago and in every case since, the Supreme Court and other courts have rejected the idea that the Act is so constrained in scope. 1920: Supreme Court found the Grand Canyon National Monument at be an object suitable to protection under the Grand Canyon at 818,000 acres. Cameron v US That case also put to rest the argument that the Act was only intended to protect historical objects. It protects other objects of historical or scientific interest. Preservation Leadership Forum 15

16 Why They Are Wrong About the Act s Scope What is the smallest size needed for the proper care and management of the objects to be protected? That depends on the objects to be protected. It has long been established that the Act permits protection of such items as ecosystems and scenic vistas, like the Grand Canyon and like the giant sequoia groves in the 328,000 acre monument upheld in Tulare City v. Bush. When the object is a large natural or historical area, the area needed for the proper care and management of the area must be accordingly large. So even if the president could resize a monument he finds too large to meet the Act s standard, sheer size alone is not enough to show a violation of the Act. Preservation Leadership Forum 16

17 Levels of Power Trump Might Claim 1. Full power to revoke in full or in part But if it exists, can that power be used for any reason? Not the proper balance, inappropriate size, better under a different management regime? 2. No power to revoke generally, but power to resize at will or change permitted uses 3. Power to change but only if the designation violated the Act, e.g., not smallest area or ineligible objects Preservation Leadership Forum 17

18 No Implied Power to Revoke No president has ever attempted to revoke a monument. Untested in the Courts. U.S. Attorney General 1938 Opinion: president may not revoke monuments Even if that opinion was revisited, we believe Congress adopted the 1938 opinion in 1976 when it adopted FLPMA. Preservation Leadership Forum 18

19 No Implied Power to Reduce or Materially Modify 1938 Opinion did not opine on an implied power to make a reduction in size or other modification reductions had been done previously and were done after But we believe no power to do in part what you can t do in full. Again, untested in the Courts. Preservation Leadership Forum 19

20 Impact of FLPMA We believe implying into the 1906 Antiquities Act any power to revoke or resize or materially modify would be inconsistent with Congress 1976 intent in adopting FLPMA. Courts must seek to harmonize earlier statutes with later comprehensive legislative schemes. Preservation Leadership Forum 20

21 Impact of FLPMA FLPMA had as a purpose to delineate Executive Branch authority in this area. 43 USC 1704(a)(4). House Report: Intent of FLPMA was to specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments under the Antiquities Act Previous reductions had been made under implied authority found in US v Midwest Oil, but FLPMA expressly repealed that authority. After FLPMA, no president has attempted to reduce or modify a monument, so this has never been tested. Preservation Leadership Forum 21

22 Is there nevertheless a power to correct violations of the Act? Opponents argue there is under Constitution, Art. II, Sec. 3 president shall take care that the laws be faithfully executed Still researching, but seems unlikely Does not say a president should act to correct what previous presidents did that he believes violated the law Take care suggests instead that the president himself should be careful to follow the law and make sure his subordinates do so Preservation Leadership Forum 22

23 National Park Service Monuments Foregoing applies to National Park System Monuments, but authority against any unilateral changes is even clearer Monuments administered by NPS are part of Nat l Park System. 54 USC Purpose of all units is to conserve the scenery, natural and historic objects, and the wild life in the System units [and] leave them unimpaired for the enjoyment of future generations. 54 USC Preservation Leadership Forum 23

24 National Park Service Monuments System units must be managed to preserve the values and purposes for which [they] were established except as directly and specifically provided by Congress 54 USC As to monuments, the values to be protected and purposes for establishment is found in the designating proclamation. Preservation Leadership Forum 24

25 National Park Service Monuments Moreover, without Congress: Executive Branch may not dispose of a unit s land. 54 USC Executive branch may only make boundary adjustments that are minor and that do not only delete land. 54 USC , Preservation Leadership Forum 25

26 National Park Service Monuments Secretary Zinke seems to think FLPMA s multiple use management applies or should apply to National Park System units. He suggests opening them to additional uses, perhaps without Congress. Wrong: NCPA v Dep t of the Interior, 835 F.3d 1377 (11 th Cir. 2016) Preservation Leadership Forum 26

27 Marine Monuments Opponents argue that these monuments, in the US s Exclusive Economic Zone (EEZ), should be eliminated by the President because they supposedly violate the Antiquities Act for other reasons: The Act authorizes monuments on land, not on water The Act only authorizes monuments on land owned or controlled by federal government Preservation Leadership Forum 27

28 Marine Monuments The monument proclamations, however, address the seabeds that is the land. And the 1982 UN Convention of the Seas gives the US sovereign power over the seabeds and the water column above it. The US did not sign the convention but has nevertheless obtained rights under it as international customary usage. Preservation Leadership Forum 28

29 Archaeology of Bears Ears National Monument Preservation Leadership Forum 29

30 Josh Ewing, Exec. Director Friends of Cedar Mesa Preservation Leadership Forum

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61 Antiquities Act Advocacy Janelle DiLuccia National Trust for Historic Preservation

62 Antiquities Act Advocacy Canyons of the Ancients Photo by: National Trust for Historic Preservation Preservation Leadership Forum 62

63 Make Your Voice Heard Submit Public Comments Regulations.gov: DOI (Best for technical comments) NTHP Tool: Monuments for All Tool: Key Dates May 11 Public comment period opened for all monuments May 26 Public comment period for Bears Ears closed June 10 DOI issued interim Bears Ears report; reopened comments July 10 Public comment period on all monuments closes August 24 DOI s final report / recommendations due Preservation Leadership Forum 63

64 Effective Public Comments Identify relevant personal or professional credentials Use supporting scientific and economic data as applicable Focus detailed comments on monuments / issues you know most about Defensive wall at Bears Ears Credit: Donald J. Rommes Preservation Leadership Forum 64

65 Additional Advocacy Letter to the Editor / Op-ed Encourage public comment Social #monumentsforall Gold Butte National Monument Photo by: Bureau of Land Management Preservation Leadership Forum 65

66 QUESTION AND ANSWER Use the chat box on the bottom right to ask questions of the speakers. Preservation Leadership Forum 66

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