Why National Monuments In The West Put Presidential Powers In The Hot Seat

Ryan Warner: This is Colorado Matters from CPR News. I'm Ryan Warner. There is a debate over the use of presidential power to protect large swaths of land as national monuments. Bears Ears is at the crux. Before he left office, President Obama designated more than a million acres across the border of Utah as a national monument. President Trump will decide soon whether to shrink Bears Ears. If he does, and reports are that he's leaning that way, it could signal a major shift in how monuments are created, here in Colorado and across the country.  Environmental historian Paul Sutter of CU Boulder is watching this closely. Paul, welcome to Colorado Matters.

Paul Sutter: It's great to be here. Thanks, Ryan.

RW: This presidential power to create national monuments comes from something called 'The Antiquities Act'. Just briefly, what is it?

PS: The Antiquities Act was passed in 1906. It did three really important things. The first was that it made it illegal for people to remove antiquities, objects of antiquity from sites particularly in the Southwest that were sites of ancient native life. It also then, gave the president power to declare by public proclamation historic landmarks, historic and pre-historic structures and other objects of historic or scientific interest and that scientific is really important, that were situated on public lands as national monuments. In the process, it also gave the president the power to set aside parcels of land to protect those monuments, though with the crucial caveat that they be the smallest area compatible with proper care and management. Then finally, the Act created a permitting system for excavation and collection of objects on the public lands. It largely confined those activities to legitimate scientific interests.

RW: "Smallest area possible", those seem like awfully critical words in this debate.

PS: They are in many ways. Lots of the opponents of how the Antiquities Act has been used in recent decades have really set upon that. I think the initial intent was to instruct the president not to go too far in setting aside lands beyond the needs for protecting the objects that were at the center of a proclamation, but importantly, the courts have been really deferential to presidential power in this regard.

RW: Back in April, President Donald Trump ordered Interior Department Secretary Ryan Zinke to review twenty-seven national monuments including Canyons of the Ancients in Colorado, which has since been taken off the list actually, but this is Trump signing that order. 

President Donald Trump: The Antiquities Act does not give the federal government unlimited power to lock up millions of acres of land and water and it's time we ended this abusive practice.

RW: Trump has said that this presidential power means people who live in these regions can't decide how best to use these lands for say, recreation, economic benefit. He says he wants states to have more authority. The president is pretty plainly saying that past presidents have abused The Antiquities Act. Doesn't sound like courts have exactly agreed with that?

PS: No, they haven't. I think we have to go all the way back to the beginning of the Act to really make sense of this. Part of the debate actually included some language within earlier renditions of the Antiquities Act that included things like scenic preservation and other sorts of powers. While those were eliminated from the final Act of 1906 itself, the provision for protecting areas of scientific interest was a really critical one and did allow presidents to protect fairly large areas. The fact that there was no specific acreage delimitation in the law I think is also an important one. Most people who have looked at this have argued that this was a kind of middle way between a truly expansive presidential power and a much more constrained one. 

 Now almost immediately after this Act was passed, Theodore Roosevelt, who was President and signed it into law, created a whole series of national monuments including the Grand Canyon National Monument. This was what would become The Grand Canyon National Park at over 800,000 acres. This sort of set people back a little bit, but in 1920 a federal court did rule that the president was well within his power to declare a national monument of that size. That really set a precedent that I think presidents have followed. So by and large, the courts have been very deferential to presidential prerogative when it comes to determining what constitutes that smallest area possible and also what constitutes objects of scientific, historical or archeological importance, including entire landscapes.

RW: Bears Ears National Monument spans more than a million acres in Utah. It's red rock country, a place filled with cultural and historic significance from rock art to American Indian dwellings and granaries. Is what I hear you saying that President Obama's actions declaring it a national monument are not the exception here, but that what might be exceptional is President Trump shrinking a previous president's monument? Is that true?

PS: Yeah. I think that is true. I think the other thing that's worth mentioning initially is that a lot of the springs from The Grand Staircase Escalante set aside during the Clinton administration where there wasn't a whole lot of process involved, but it is important to recognize that the Bears Ears designation came at the end of a very long process that included lots of input from all sorts of people including local people and that in many ways deferred to a legislative effort to try to get this land set aside with Congressional approval. And when that didn't work out, President Obama set it aside as a national monument, albeit of about 550,000 acres less than the tribes who were the main proponents of this wanted, in part again, in deference to local interest. 

 Now there are some examples of presidents reducing the size of national monuments in the past, and the two most important are, first one that was set aside in 1909, I believe, Mount Olympus, which would become Olympic National Park was reduced by half. This was initially a 600-something thousand acre site that was reduced by 300,000 acres in 1916 by Woodrow Wilson, in part, arguing that the timber in the area was needed during the first world war.

 And then there was a Grand Canyon National Monument. This is a little confusing because the Grand Canyon National Monument set aside by Roosevelt would become a national park, but then there'd be another one set aside by Hoover as an addition to the park as a monument. And Franklin Delano Roosevelt would also reduce that by about 70,000 acres. 

 So there are examples of presidents having done this, but there were never any real legal challenges to these. So we don't really have a sense of whether presidents have a legal power to do that. And then very quickly, the last thing is that the Federal Land Policy Management Act of 1976 also ups the ante here, and makes it less likely that the president has power to abolish, or potentially, even reduce the size of a National Monument. 

RW: You're listening to Colorado Matters. I'm Ryan Warner, and we are speaking with Paul Sutter, Environmental Historian and Chair of the History Department at CU Boulder. In the context of Bears Ears National Monument in neighboring Utah, there is talk, and it looks like the president is leaning towards shrinking that national monument, which was created at the tail end of the Obama administration. I guess I'd like to know, Paul, what a national monument is exactly. I mean I think if you asked 10 people, nine of them wouldn't be able to tell you what protections that affords or doesn't. I mean it's not like all activity that goes on, on that land immediately stops or is banned or something. 

PS: Right, so there's a wide variation. It tends to be less stringent than national parks for sure, and certainly less stringent than designated wilderness areas, that are probably the most stringent form of protection we have. But in most cases, and particularly in recent cases, the creation of a national monument does prohibit mineral and other sorts of mining activity. It may or may not prohibit off road vehicle use, or mountain biking, or things like that. It sort of just depends.

RW: But that just really sort of mean new activity, or is that retroactive?

PS: Yeah I think it's mostly new activity. I'm not exactly sure on that. 

RW: All right. So this notion that a national monument stays pristine, in some regards, would be not the right way to capture it.

PS: Probably not the right way to capture it, in part, because mostly these are being protected, mostly but not always, these are being protected as landscapes that have a lot of history to them. In some ways this goes to one of the problems with the wilderness idea itself, was  suggested that there are these vast landscapes in America that had absolutely no history to them. And I think one of the really powerful things about the Antiquities Act and the National Monument System, it is recognizing these landscapes that have really profoundly important natural and ecological values, but also have deep historical value as well. And in a case like Bears Ears, I think one of the really interesting things that we see in that, is because it was, to a great degree, a tribally driven process, in some ways we see the distinction between natural and cultural even collapsing there, because some of the natural areas that are protected are claimed to be of immense cultural importance to the native peoples who were behind this.

RW: There really are two things going on here. So there's the immediate decision the president is to make about whether to shrink Bears Ears, which could come in December. He has a trip actually planned, the president does, to Utah. A lot of people are thinking that's when the announcement will come. And there's also consideration in Congress of larger changes to the Antiquities Act right?

PS: Right. So there is a bill that has been introduced by Rob Bishop from Utah, and he wants to fundamentally change the nature of the Antiquities Act to limit presidential power, with the possible exception of presidential power to diminish or revoke these proclamations. And he also wants to make sure that the size of these monuments is quite small. So anything below 640 acres in his bill, would be possible to designate by the president without any sort of review. But when you get above 640 acres, up to 10,000 acres, those areas would require environmental review under the National Environmental Policy Act. And between 10,000 and 85,000 acres, it would actually require approval of state and local government. And so this would create a real series of limitations on the president's power to use The Antiquities Act.

RW: Have both Democrats and Republicans declared monuments?

PS: Yeah, so this is, I mean I think this is really important, sixteen different presidents have declared more than 150 national monuments. Almost every president. I believe. The only ones who haven't are Nixon, Reagan, and the first President Bush. But this has been a largely bipartisan practice. It's been a practice in which presidents have often attempted to burnish their conservation credentials by setting aside lands. But it's also been a practice where presidents have reacted when congress has been, for whatever reason, unwilling to act to protect areas of critical, historical, archeological, scientific importance. And in that regard, I think, it's a very important presidential power. It gives a kind of emergency power of the president when congress grinds to a halt on critical conservations issues. 

RW: Thanks for the long view. I appreciate your time.

PS: Yeah, thank you.

RW: Paul Sutter is an environmental historian and chairs the History Department at CU Boulder. A decision on whether to shrink the Bears Ears National Monument in neighboring Utah is expected from the Trump Administration next month. This is Colorado Matters from CPR News.