Judge: President Trump Doesn't Have to To Say Why He Shrinks National Monuments

by Gabriella Hoffman: This is a win for true conservation and public lands use.

In a huge blow to radical environmentalists and similar obstructionists, a judge ruled that President Trump doesn't have to publicly disclose his reasoning for shrinking national monuments.

U.S. District Judge David Nye ruled Monday that records held qualify as protected presidential communication.

A group called Advocates for the West had sued the Trump administration for 12 documents with respect to its decision to shrink two national monuments in Utah: Bears Ears and Grand-Staircase Escalante National Monuments in Utah. The contention was over the designation of Bears Ears and Grand Escalante as national monuments by outgoing President Barack Obama in December 2016 and President Bill Clinton in 1996, respectively. The former's action was unprecedented and rightly met with controversy. As a result, this issue has divided the sportsmen community—but it shouldn't have to.

The law that governs public lands designation is the Antiquities Act of 1906—a law that has been greatly misinterpreted by those keen on promoting preservationist policies. Trump scaled back these two monuments because they signaled bad interpretation of the Antiquities Act's (1906) provisions, specifically Section 2. It reads:Sec. 2. That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fied unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.This bolded section makes the motion to scale back well within presidential authority: national monuments "shall be confined to the smallest area compatible with proper care and management of the objects to be protected." Shouldn't this be interpreted correctly? Presidents Clinton and Obama didn't believe so.

Bears Ears National Monument originally comprised 1,351,849 acres, but shrunk it by 85% in December 2017. Grand-Staircase Escalante originally comprised 1,880,461 acres, but was reduced by 47% . These sweeping designations of large areas, not "smallest area" per Section 2, give the president license to shrink monuments. In fact, other presidents have ordered the shrinking of national monuments in a grand fashion—including Presidents Eisenhower, Truman, Taft, Wilson, and Coolidge. Why the hysteria?

Brookings Institution argued President Trump is within his right to shrink (or designate) national monuments to his liking:On its face, that is correct. The Antiquities Act does not engage the issue of diminishment. However, that does not mean that such power cannot be implied.

Others argue that a 1976 statute, the Federal Land Policy and Management Act, limits the president as it engages diminishment directly—noting limitations on the Secretary of the Interior to modify existing protected areas. Two challenges emerge from this argument. First is that the law is explicit in limiting the Interior Secretary's powers and not the president's power, even though Congress had constitutional authority to limit the president's powers explicitly. Second, Congress, in engaging limitations broadly, listed numerous areas of law in which the executive branch would be restricted from diminishment (or abolition) and failed to include the Antiquities Act in that list.

... It is true that the first part of the law grants the president the power to establish national monuments. The second part of that grant could easily be interpreted to imply the power to diminish. That section notes, "the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected." Here, a president is charged to make this area as small as is needed.There is a great distrust of federal government from those in Western states, and this unilateral land grab by outgoing President Obama in December 2016 added fuel to this already raging fire of distrust. Here's what retiring U.S. Senator Orrin Hatch wrote about the his mishandling of the Antiquities Act then:When Obama declared the Bears Ears National Monument, he ignored the years of work that Utah's congressional delegation spent fighting to pass legislation to protect the region through a fair and open process. He ignored the state legislature and the governor. He ignored the stakeholders and local residents who were striving together to find a workable solution. He ignored the best interests of Utah and cast aside the will of the people — all in favor of a unilateral approach meant to satisfy the demands of far-left interest groups.

With the stroke of a pen, Obama locked away an astonishing 1.35 million acres, a geographic area larger than the total acreage of all five of Utah's national parks combined. He did so citing his prerogative under the Antiquities Act — a century-old law intended to give presidents only limited authority to designate special landmarks. Instead of exercising restraint under the act, Obama — and indeed, many of his predecessors — wielded this law as a blunt instrument for executive overreach.Does the scaling back of monuments mean the president stole our land? Nope. Does this mean public lands will be automatically sold to private developers? Nope. (In fact, that argument can be challenged because the federal government itself sells land to the highest bidder. Ouch!) Is this is a detriment to accessing public lands? Absolutely not. However, when the government sections off too much land under federal designation, it'll create a strain on public lands access. Eventually, national monument designations could turn into National Park designations—which limit opportunities to hunt and fish, for example. There should be a balanced approach to allowing public lands access without using the power of the purse of the federal government to infringe on people or states in the process.

There are currently efforts in Congress to address overreach currently inset in the original Antiquities Act through H.R. 3990, or National Monument Creation and Protection Act. It's unlikely this bill will get any consideration or be deliberated on at this time.

I think President Trump should be applauded for striking a balance between federal power and state's rights. We will keep tabs on future public lands or conservation-minded policy developments.
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Gabriella Hoffman (@Gabby_Hoffman) is a media strategist based in the Washington, D.C., Metro area. She is Resurgent's DC Correspondent and hosts "Outsiders on the Inside" at The Resurgent, a series highlighting "outsider" conservatives serving in the U.S. Capitol and in government.

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