A Dramatic Reduction of Protected Federal Land: Parsing the Administration’s Proposals to Cut Back Bears Ears and Grand Staircase Monuments

On Monday, President Trump announced the dramatic reduction in protected federal land in Utah, including cutting Bears Ears National Monument (established by President Obama) by about 85 percent, and cutting Grand Staircase-Escalante (established by President Clinton) by about half of its current size.  In the discussion that follows, Stanford Law’s Greg Ablavsky discusses the law and national monuments.

Can you give us the cliff notes explanation of the Antiquities Act?

Congress enacted the Antiquities Act in 1906 in response to widespread looting of historic sites located on public lands, particularly in the Southwest.  The Act authorizes the President “to declare by public proclamation” that certain public lands are “national monuments,” which confers on them a protected legal status that forecloses certain uses of the land—particularly resource extraction.

How was it used by Presidents Obama and Clinton to set up these national monuments?

Both Obama and Clinton used the Antiquities Act in the final days of their presidencies to set aside Bears’ Ears and Grand Staircase-Escalante in southern Utah respectively.  Legally, this transformed these federal lands into national monuments, a status enjoyed other protected sites like Devil’s Tower in Wyoming, Muir Woods here in the Bay Area, or even the Statue of Liberty in New York Harbor.

What was the rationale for establishing these monuments and others—the benefits—national interest, environmental, etc.?

The Antiquities Act itself outlines what it is intended to protect— “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”  The Act was enacted in the early days of movements for historic and environmental preservation, and the purpose, in part, was to protect sites that were not yet well understood but rapidly disappearing.  Many at the time were especially concerned about Ancestral Puebloan ruins like the famous cliff dwellings at Mesa Verde.  That was a major motivation for the protection of both Grand Staircase-Escalante and Bears Ears, too—both contain thousands of archaeological sites built by the Ancestral Puebloans, and Presidents Clinton and Obama cited these resources as a reason to protect these lands.

How would this move by President Trump square with the rights and wishes of Native nations?

This move profoundly affects the Native nations of the Four Corners region.  Bears’ Ears Monument in particular represents a new collaboration between the federal government and the Hopi, Diné/Navajo, Ute, and A:shiwi/Zuni Nations, who created an intertribal council that had a formalized role in working with the National Park Service and other federal agencies to craft the monument’s management plan.  Reportedly, Secretary Zinke made the recommendation to reduce the size of the monument without consulting this council or representatives of the tribe.

Critics of Bears’ Ears have argued that some local Navajos and others don’t in fact support the monument.  This is an age-old tactic in which non-Natives claim that they are “defending” Native interests even as they attack formally constituted tribal governments.  During Indian Removal, for instance, many Removal proponents claimed that they were “protecting” ordinary Indians from their supposedly rapacious leaders—who, inconveniently for those proponents, opposed Removal.  Tribal governments deserve respect as the representatives of the interests of their people, in the same way that Utah’s senators and governor speak on behalf of the state despite widespread disagreement among Utahns.

A Dramatic Reduction of Protected Federal Land: Parsing the Administration’s Proposals to Cut Back Bears Ears and Grand Staircase Monuments 1
Bears Ears National Monument (photo courtesy of the Bureau of Land Management)

What is the legal argument against the establishment of these monuments? We hear some folks in Utah complain about federal overreach and land grab in the press.

There’s no viable argument that creating the monuments itself was illegal, although the attacks on the monuments do blend at points with an untenable constitutional theory that some Utahns hold that the federal government lacks the authority to own land within their state. In practical terms, though, the land at issue will still be legally owned by the federal government; it’s simply that there will be fewer restrictions on how the land can be used—in particular, portions may be opened for mining or oil drilling.

Many Utahns feel that the federal government doesn’t have their interests at heart when it makes land management decisions, and Trump and Zinke have played into these claims in their rhetoric.  But this isn’t an instance of a distant federal bureaucracy dictating policy; as the thousands of ruins within Bears’ Ears demonstrate, the people who would be managing the land have been living on and using it for millennia, long before white settlers invaded and asserted ownership.  But this dynamic is sadly an all-too-common experience for tribes: because so many of their rights depend on federal law, they often have to rely on the federal government, which then leads to arguments that federal actions protecting Native interests are really an attack on “locals” by “bureaucrats.”

Can President Trump reverse previous president’s actions easily—or will this be caught up in the courts?

Trump’s dramatic reduction of the monuments puts him into legally uncertain territory.  Some Presidents have reduced national monuments before, some significantly—although these reductions are, I believe, unprecedentedly large in terms of acreage.  But these actions were never tested in the courts.  The Antiquities Act itself does not provide any authority in its text for the President to reduce the monuments; unsurprisingly, those arguing for this power to reduce the monuments’ size are those who generally favor an expansive view of executive power.

In my research, I have found one piece of evidence that suggests that in the early United States, delegations of authority to the executive over public lands were construed narrowly: in 1794, Attorney General Bradford had to decide whether either the Governor of the Northwest Territory or the President had the power to issue patents to lands that Congress had directed to be surveyed.  He concluded that neither of them had this authority, even though Congress clearly intended this result, because “the words of the act” were not “broad enough to implicate any such power.”  But this is only one bit of historical evidence in a very long and complicated history of public lands, as well as separation of powers; we’ll see what courts make of all of this.

Greg Ablavsky is an assistant professor of law at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.