National monument designations should require congressional approval, not a Trump Executive Order

The next wave of panicked press stories about President Trump “undoing Barack Obama’s legacy” are emerging this week and it centers on Trump’s plans to review the country’s collection of national monuments. The President is expected to issue another Executive Order tomorrow which will direct the Interior Department to review all of the existing national monuments with an eye toward potentially eliminating some of them or possibly transferring them to the National Park Service where appropriate. (The Hill)

President Trump will sign an executive order on Wednesday instructing the Department of the Interior to review the designations of national monuments by his predecessors, according to the Salt Lake Tribune.

Trump’s order reportedly will instruct Interior Secretary Ryan Zinke to examine those designations to determine whether they were within the scope of a century-old law that allows presidents to set aside federal lands without congressional approval.

The executive order is mainly geared toward reviewing President Obama’s designation of Bears Ears National Monument in Utah in December, according to the Tribune. The 1.35 million acre site was preserved due to its Native American heritage, but critics say Obama’s designation was an overreach of executive power.

This is a sad development, but one which probably couldn’t be avoided. As The Hill points out, one of the key items under scrutiny here is the Bears Ears National Monument, a highly controversial designation made by Barack Obama which locked off more than 1.3 million acres of land centered in southern Utah. The idea that this much land of diverse characteristics could be designated as a single national monument (versus a national park) was, frankly, ridiculous to begin with. Some of the individual prehistoric archeological sites and specific natural features inside of that range certainly might have qualified, but that’s simply too much land to grab in a single, sweeping action by one person.

This system isn’t locked in stone, however, Nothing about the country’s national parks and monuments appears to be permanent, and control of both can theoretically be altered by Congress. And that’s how it should be. National Parks are created or added to by acts of Congress. (You can read more about that process at the National Park Service web site.) But Congress also vested independent authority in the Executive Branch to create National Monuments under the Antiquities Act of 1906. (Emphasis added)

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 the proper care and management of the objects to the protected:

The intent of this act sounds clear from the language and it’s equally obvious that Barack Obama went far, far beyond the original intent. Notice that Congress specified that monuments were to be landmarks, structures and objects. These refer to individual features, not vast tracts of wilderness. Congress also went out of their way to specify that the protected lands would be restricted to “the smallest area compatible with .. proper care and management” of the object.

Barack Obama engaged in the same type of massive overreach when he used an obscure provision in another law to effectively ban drilling in offshore regions in perpetuity by declaring them protected sanctuaries. The act was meant to allow the President to identify specific shoals or breeding areas and safeguard them from development, but Obama applied that executive authority to massive stretches of the shelf containing wildly different undersea terrains and habitats.

In the old days, Presidents mostly exercised restraint in the use of these powers and didn’t go for such wildly inappropriate land grabs. That’s all changed now and there’s nothing stopping Donald Trump or any later president from doing the same thing if they wish. That’s why we need congressional action here, not just another Executive Order from Trump. Anything he does in this fashion can once again be undone by the next president with the stroke of a pen. But Congress gave the White House this power and they can take it away. They should also be able to roll back any national monument designations or at least transfer them over to the status of a National Park under the park service’s control. And there’s precedent for that. In 1933 there were 56 National Monuments transferred to the Park Service. Trump could transfer Bear Ears immediately and Congress could then chop it up as needed into bits which actually merit protection, leaving the rest open for development.

And then they could get to work entirely repealing the Antiquities Act of 1906. It’s the right thing to do in this modern era which has become so poisoned by politics. That law has been exploited to an embarrassing degree and will be in the future unless Congress dumps it.

Allahpundit Aug 09, 2022 5:01 PM ET