Trump’s National Monuments Review

The news about Trump’s presidency is slowing down.  He’s not doing any less than he was, but he’s starting to get less coverage.

In a way, that’s a good thing.  After all, if only national media had given him a bit less free press during the campaign, we might very well have a different president today.  And, while some of my readers are pleased to have this one, I think even they will agree that media outlets all granting one selected candidate free press is no way to pick a president.

Why would this matter now he actually is president?  Well, the thing is, Mr. Trump is still doing a lot of things that the ordinary person might have some pretty strong feelings about.  Protests and demonstrations are an important part of our political process, as are local town meetings and public hearings on regulations.  When we don’t get notice about changes that are coming down the line, we don’t have any way to get to the hearings, hold the town meetings in time, or set up protests.  We rely on the media to let us know in advance, and they’re letting us down.

The trouble is, a lot of people find this stuff boring.  I mean, yeah, if you happen to live near the Katahdin National Monument you probably have strong feelings about it one way or the other, but there’s only about a million people in the whole state of Maine, and the rest of the country is more worried about high school sportsball.  And, since most of our news programs are national rather than local, unless we’re paying close attention we might completely miss something of vital importance to us.

So, yes, it sucks, but we really can’t blame the news media.  Not entirely, anyway.

What’s actually happening is that, because of Wednesday’s executive order, a review of all national monuments established over the past two decades will be done by Interior.  The current secretary, Ryan Zinke, spoke to reporters on Tuesday about his probable approach to the subject, but he didn’t give away any hints.  While some articles (including the Post’s referenced above) list 25 potential targets, the language of the order actually includes over twice that number — though, to be sure, some are small enough that no alteration is likely (unless they strike oil at Lackland again).

That’s because the motivation to perform this review is a common opposition, particularly in the West, to what’s long been considered by conservatives as an irresponsible Federal land grab by the Executive Office, one with no real oversight or potential for local opinion to make any impact. Occasionally, presidents have acted with questionable excess in establishing land protections, but it’s rare that a successor would even modify an earlier designation and none have ever removed one.

To be sure, Congress does have the authority (under Article IV of the Constitution) to manage and control all public land within the country — itself the authority which underlies the Antiquities Act, that law which permits a president to establish national monuments in the first place.  So Congress, therefore, can act to create, abolish, or alter the status of any monument or park at any time, which is in fact a form of oversight.  Likewise, it’s Congress that provides funding for the administration of these lands once designated.

The question that remains, however, is whether the president or any executive department (including Interior) has the authority to redefine or dissolve a national monument once it’s been established.  Over the years, several legal opinions have been offered on the topic, but no presidential action under the Antiquities Act has ever been successfully challenged in the courts.  Still, that may be because, while alterations have been made by executive order, no president has ever tried to eliminate an existing monument.  A recent review by the non-partisan Congressional Research Service indicated that, while presidential authority to establish is explicit and to manage implicit under the Act, no authority exists to remove the protections once established.

The language of the Order and the statement of Secretary Zinke show that the Executive Branch is aware of this, however.  The Order in particular quotes the Antiquities Act specifically, requiring that the review take steps to ensure that these monuments include “the smallest area compatible with the proper care and management of the objects to be protected”.  And, by implied authority and by long precedent, several steps can lawfully be taken and very probably will.

I’m not going to try to list every monument that’s going to be altered, but I would just like to mention a few:

  1. Grand Staircase, Parashant, and Bear’s Ears:  These massive million-acre reservations along the Colorado River were lobbied for by the local native tribes, but big business and local residents alike aren’t terribly pleased.  There are about a dozen others with similar attributes in the West.
  2. The California Coastal National Monument is an oddity.  While most experts agree that the coastline and islands designated ought to be protected, it would be more usual to make the area either a national or state park due to its nature.  The same could be said for Berryessa, also in California.
  3. I mention the Katahdin National Monument above.  While smaller than the 100,000 acre size mentioned in the Order, it’s likely to be reviewed as the local population tended to oppose its designation.  It was also the subject of a Trump campaign promise.  There are few in the East, but they do exist.
  4. There are five National Marine Monuments, most of which are unlikely to be reduced.  After all, by asserting their protected status, the United States has established recognized ownership under international law.  Northeast Canyons and Seamounts, however, is particularly opposed by local fishing interests, and several of the regulations in Papahānaumokuākea (west of Hawaii) are likewise unpopular.

I’m not an expert on the environment or archaeology, and so I’m not going to go into any great detail about the pros and cons of this order in general or of any park in particular.  It is worthy of mention, however, that the past three presidents used the Antiquities Act more extensively than any since Theodore Roosevelt, the first to designate a national monument.  It’s arguable that they regularly did so with less justification under the precise scope of the act.

Since President Trump has demonstrated a tendency to push the boundaries of his authority, it’s a safe prediction that he’ll attempt to do the same here.  Having said that, however, it’s likely that any conservative president would have felt compelled to do the same.  Both Clinton and Obama were certainly aware of this, which tells me that some of these designations were deliberately made larger than they otherwise would have been for purely political purposes, in order to ensure that future Republican officials would be seen as anti-environment due to their inevitable response.

In some ways, that’s just as well, I suppose.  It would be nice to preserve some of the archaeological sites around Bear’s Ears, for example, and local interests may prompt Congress to revisit the status of certain of these areas as national parks.  That sort of national discussion is good for the body politic, improves individual involvement in policy, and elevates the national dialogue beyond the purely partisan and into the realm of ideals and issues.

Which is, after all, exactly what we ought to be discussing.

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