By Cynthia F. Crawford and Kara E. McKenna

Since news broke earlier this week that President Trump would be signing an Executive Order (“E.O.”) regarding the Antiquities Act, hysteria has ensued. It’s as if the President had declared a new Oklahoma Land Rush on some of America’s most treasured landscapes, and the backhoes were lined up and waiting for the sound of the gun to start digging up the land.[1] In the 24 hours since its signing, the outcry has reached fever pitch.  Some claim the E.O. is but the first step in giving away the nation’s public lands to corporate interests. Others lament that the E.O. does not go far enough to restore the proper balance among the varied interests involved in public lands management. Either way, such hyperbole misrepresents and overstates what the E.O. actually says and what it will likely achieve in its implementation.

When considering vocal competing views, I often find myself asking “how did we get here?” and “how do we move forward productively?” Regarding national monument designations, the answer to the former is lack of transparency and Presidential accountability. The answer to the latter is more transparency and public involvement in the national monument designation process.

The E.O. directs the Secretary of the Interior, Ryan Zinke to review all national monuments created by the Antiquities Act since January 1, 1996, that measure more than 100,000 acres or lacked appropriate public input. The E.O. also directs Secretary Zinke to provide two reports – a 45-day interim report regarding Bears Ears National Monument and 120-day final report regarding all other national monuments. The final report is to include suggestions regarding potential legislative proposals, and executive or other appropriate actions to restore trust between local communities and Washington, give voice to Governors of States and local and Tribal governments who are affected by monument designations, and put America back on track to manage our federal lands in accordance with the traditional multiple-use philosophy. The E.O. does not direct any action regarding any national monument nor direct the Secretary to reach any predefined conclusion. The E.O. is thus a rational first step in clarifying “how we got here,” and “how we move forward productively.” It is not, as some would claim, the beginning of the end for America’s public lands.

Since September 2016, Cause of Action Institute (“CoA Institute”) has been investigating the use, misuse, and abuse of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) by recent presidential administrations. To that end, CoA Institute has submitted over ten (10) Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), requests to various and executive branch offices agencies – Council on Environmental Quality (“CEQ”), Department of the Interior (“Interior Dept.”), Bureau of Land Management (“BLM”), and the National Oceanic and Atmospheric Administration (“NOAA”) – involved with national monument declarations. To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only a small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several concerns and highlight the pressing need for transparency and oversight in the national monument designation process.

The Antiquities Act was intended to protect “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” by permitting the President to declare such landmarks, structures, and objects of historic or scientific interest as national monuments.[2] The Act also permits the President to “reserve” land parcels as part of the national monument so long as such parcels are “confined to the smallest area compatible with the proper care and management of the objects to be protected.”[3] Alternatively, if the object is not situated on federal land, the object and the land may be relinquished to the federal government.[4]

While such statutory language should limit use of the Antiquities Act, in practice, the Act has been used by presidents to declare or expand national monuments with little more than the stroke of a pen. Since 1996, Presidents Bill Clinton, George W. Bush, and Barack Obama have declared over 55 national monuments, many with little or no publicly-available data, analyses, or impact studies to substantiate “the smallest area compatible” with “the proper care and management of the objects to be protected.” Problematically, some courts have held that the Act does not require the President “to make any particular investigation” prior to a monument being designated.[5] Thus, a President may declare a national monument without any information or data supporting the declaration. Because courts have been reluctant to review monument designations absent facts establishing and identifying lands that were improperly designated,[6] public recourse to challenge designations is essentially nonexistent. Indeed, no such challenge has yet been successful.

Although the bulk of the hysteria surrounding the E.O. relies on the assumption that national monuments are a benign tool for protecting rural land, many Americans would likely be alarmed to learn that under the current statutory and judicial rubric, the Act would permit the establishment of national monuments of a very different kind. For example, by a simple transfer in ownership of the relevant property to the federal government, President Trump could declare Trump Tower or Mar-a-Lago a National Monument by simply parroting a few key phrases in the declaring proclamation. There would be zero need to substantiate the “historical significance” of the property, the appropriate scope of the land included, or the need for that particular form of preservation. And – here’s the kicker – the declaration could include whatever protections and uses he deemed fit (such as requiring searchlights to cast a “protective” glow on the name of the building on a nightly basis) and, according to some, the monument designation could not be revised or reversed by a subsequent President, though there is disagreement on this point. Outrageous? Of course, Possible under the Act as written and applied today? Absolutely.

From a government oversight and transparency perspective, Presidential use of the Antiquities Act is rife with abuse, as major decisions impacting vast public lands, natural resources, property rights, and livelihoods are left to the sole discretion of the President, who is not required to substantiate his designation in any meaningful way beyond the use of a few magic words on the face of the declaring proclamation. Unchecked discretion and lack of recourse to remedy overbroad declarations, has resulted in misuse of the Antiquities Act. Further, as publicly reported, and evident in government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.

That is why today, CoA Institute submitted a letter to Secretary Zinke highlighting our concerns regarding recent misuse of the Antiquities Act, preliminary results of our ongoing investigations, and recommendations regarding oversight of existing monuments and increased transparency in the designation process.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org.

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.

Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies.

[1] Presidential Executive Order on the Review of Designations Under the Antiquities Act (Apr. 26, 2017) available at https://www.whitehouse.gov/the-press-office/2017/04/26/presidential-executive-order-review-designations-under-antiquities-act.

[2] 54 U.S.C. § 320301 (a).

[3] 54 U.S.C. § 320301 (b).

[4] 54 U.S.C. § 320301 (c).

[5] Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).

[6] Id.