In December, President Trump approved the largest rollback of federal land protection in our country’s history. Trump’s announcement to drastically slash the size of two national monuments in Utah – Bears Ears and Grand Staircase-Escalante among additional changes to other national monuments – was not a surprise. But it has been controversial.
The day after Trump signed the order, the outdoor recreation company Patagonia posted a message on its website under the headline, “The President Stole Your Land.”
Patagonia has joined a flurry of lawsuits challenging whether President Trump has the authority to undo or change monuments created by past presidents. So does the Antiquities Act allow presidents to roll back national monuments?
John Ruple, associate professor of law at the Wallace Stegner Center for Land Resources and the Environment at the University of Utah, was a guest on a recent episode of our podcast, Trump on Earth. He is also a member of Friends of Cedar Mesa, one of the groups that is suing President Trump over his revisions to Bears Ears.
LISTEN: The Incredible Shrinking Monument
Ruple argues that Trump’s decision to reduce the size of Bears Ears, designated by President Obama in 2016, and Grand Staircase-Escalante, designated by President Clinton in 1996, is “stepping on the authority of Congress and of the courts.
“So there’s really a fundamental question here about separation of powers. That’s at the heart of this this litigation,” said Ruple.
Ruple explains that the Antiquities Act, created by President Roosevelt in 1906, was actually a compromise from the beginning.
“You had two separate bills working through Congress,” said Ruple. “One was focused on protecting archaeological resources and creating very small highly defined areas to protect ruins in the Southwest. The other bill was much broader in scope, it would have allowed the president to set aside national parks for a broader range of interests for and with a higher level of protection.”
In the end, the Antiquities Act was forged to protect archaeological ruins that were under threat, while also allowing the President to include broader landscapes.
“For the last 111 years Presidents have been doing that,” said Ruple. “They’ve been using the power delegated to them by Congress to set aside certain lands as monuments…The Antiquities Act allows the president to declare monuments only on federal land, so there was no change in ownership, no land was taken away from private property owners or from the state when these monuments were created, it’s simply a change in how lands were already federally owned and managed.”
According to Ruple, the Bears Ears landscape has been occupied by Native Americans on and off for 13,000-years. The area is home to intact Pablo ruins and Native American graves and artifacts that have been threatened by looters.
“We’re talking about a landscape that has over 100,000 archaeological sites. It’s an area that the Congressionally-chartered National Trust for Historic Preservation has said, ‘perhaps nowhere in the United States are so many well-preserved cultural resources found within such a striking and relatively undeveloped natural landscape.’ This is a landscape that, in any place else, would have been a national park 50 years ago,” said Ruple.
According to Ruple, the final report to shrink the monuments was short and explained why Secretary Zinke believes national monument reduction was justified.
“But in terms of how he came to those conclusions, that hasn’t been clear,” said Ruple. “What we do know is that he seemed to meet disproportionately with representatives from state government and county government while refusing to meet, or at least significantly, with the five Native American tribes that were responsible for the initial Bears Ears proposal…It was a very one sided review at least from what we’re seeing so far.”
In the end, Ruple believes the lawsuits filed against the Trump administration come down to the question of presidential authority.
“Does the President have the authority to rescind and replace a national monument? The Antiquities Act does not expressly grant him that power, and I think it is a very strong argument to be made that Congress intended to retain that power for itself and that it didn’t intend presidents to be able to to make these kinds of decisions, said Ruple.”