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A federal judge in San Diego ruled Tuesday that the Trump administration can waive a slew of environmental laws and other regulations to build the president's highly vaunted U.S.-Mexico border wall in California.
Federal laws waived by the Department of Homeland Security for construction of a border wall include the Endangered Species Act, the Clean Air Act, the Migratory Bird Treaty Act, the Antiquities Act and many more.
Fate of National Monuments Remains Shrouded in Secrecy: Earthjustice Sues Federal Agencies for Withholding Information From Public
For months, the Interior Department, Bureau of Land Management and the White House Council on Environmental Quality have repeatedly failed to answer the public's Freedom of Information Act (FOIA) requests for information related to the Trump administration's ongoing review of national monuments—protected federal lands and waters that belong to the American people.
The review of the country's national monuments has been marked by a lack of transparency—Interior Sec. Ryan Zinke has yet to disclose how he incorporated input from Native American tribes and the 2.8 million Americans who urged protections for national monuments in the public comment period into his leaked draft recommendations to shrink monuments and gut their protections. On Thursday, Earthjustice filed a lawsuit on behalf of six organizations whose requests for information on national monuments have been met with radio silence.
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Sen. Orrin Hatch (R-Utah) confirmed in a Friday statement that Trump called the senator to inform him of the Bears Ears decision and that he will also shrink Utah's Grand Staircase-Escalante National Monument, which is thought to contain more than 60 billion tons of coal.
Rep. Rob Bishop is moving legislation that would radically cut down the scope of the Antiquities Act, effectively blocking new protections of national monument lands.
Bishop's bill—in an Orwellian flourish, titled the "National Monument Creation and Protection Act"—would bar the Antiquities Act from being used to protect landmarks, prehistoric structures and objects of "scientific interest," switching the law's scope to the vague term "object or objects of antiquity."
"We are prepared to challenge immediately whatever official action is taken to modify the monument or restructure any aspect of that, such as the Bears Ears Commission," Ethel Branch, Navajo Nation attorney general, told Reuters.
Trump Signs Executive Order Targeting National Monuments, Could Open Up Lands for Oil and Gas Development
By Jason Mark
If you've ever stood on the rim of the Grand Canyon and marveled at the awesome view of the gorge—unmarred by mines or machines—you have the Antiquities Act to thank. If you've ever walked the banks of Wyoming's Snake River and taken in the sight of the stone towers at Grand Teton National Park, you also owe a debt of gratitude to the Antiquities Act. The same is true of California's Death Valley and Mt. Lassen National Parks, as well as Katmai and Glacier Bay National Parks in Alaska, Washington State's Olympic National Park and Arches and Zion National Parks in Utah. In all of these cases, the first step toward establishing a national park was for a president to first designate a national monument under the Antiquities Act.
But this landmark conservation law is now in jeopardy. Some Congressional Republicans—along with Montana Rep. Ryan Zinke, Donald Trump's pick for Interior Secretary—are threatening to repeal or downsize some of the national monuments that President Obama established toward the end of his term. Such a move would be unprecedented: No president has ever sought to reverse a predecessor's monument designations. And the noises about somehow revoking a national monument are likely just prelude to an eventual attempt by Congressional Republicans to rewrite the law in its entirety to prevent future presidential monuments.
Before I go any further, some history might be useful. The Antiquities Act—it just sounds old, right? And, in a way, it is: 111 years old this year, to be exact, having been passed by Congress and signed into law by President Teddy Roosevelt, a Republican, in 1906. In this case, however, old doesn't mean outdated. Instead, it means tested and proven.
The Antiquities Act was created as a response to an epidemic of looting and grave-robbing that swept the American West at the turn of the last century. Congress gave the president powers for "the protection of objects of historic and scientific interest." In some cases, presidents have used that power to preserve landscapes containing archaeological treasures. Good examples include national monuments such as Walnut Canyon and Wuptaki in Arizona, the Chesapeake & Ohio Canal that runs through Maryland and Hovenweep along the Utah-Colorado border. Sometimes, presidents have leveraged the law to protect outstanding natural features like the Petrified Forest or Craters of the Moon in Idaho. In many cases, the protection of archaeological and natural wonders overlap. See: Grand Canyon, the California Channel Islands or the Bering Land Bridge in Alaska.
The U.S.' first national monument, Devil's Tower in Wyoming, is a classic example of how cultural and physical treasures are often one and the same. For the Lakota and Cheyenne peoples, the dramatic eruption of stone at the edge of the Great Plains was a sacred place. They called the site "Bear's Lodge" and the rock monolith was crucial to their star-knowledge—their way of tracking the seasons. White pioneers, too, were naturally impressed by the sight and when loggers and miners threatened the area, President Roosevelt moved to protect it. The fact that indigenous societies and white settlers alike apprehended a numinous power in the place seems, to me at least, to represent the best of America's conservation traditions. What a wonderful example of how awe crosses cultures.
The brand-new Bears Ears National Monument in Utah clearly follows in the tradition of Devil's Tower. Designated by President Obama right after Christmas, the preserve covers 1.35 million acres of high desert flora and dramatic rock outcroppings, as well as thousands of sites containing relics of pre-Columbian societies—sites that in recent years have suffered from a rash of looting and vandalism. Given the intention of protecting archaeological sites, Bears Ears would seem to be a law school textbook example of how the Antiquities Act should work.
Utah's Congressional delegation sees it differently. Jason Chaffetz, a Republican member of the House of Representatives, says Obama's move represented an "egregious" disregard for the people of Utah. He and other Utah elected officials are pushing for President Trump to revoke the new monument. "If it was created by a pen, it can be dismissed by the pen," Chaffetz told fellow Republicans at a party meeting in Philadelphia.
During his confirmation hearings to become Interior Secretary, Rep. Zinke promised Utah Sen. Mike Lee that, if confirmed, he would travel to southern Utah to investigate the new monument for himself. "It will certainly be interesting to see whether the president has the authority to nullify a monument," Zinke said.
Chaffetz's confidence and Zinke's curiosity are misplaced. Many scholars agree that while the act clearly gives the president the power to establish a monument, there is no procedure for a president to abolish one, since his predecessor's designation would have the force of law (see here and here). A November 2016 report drafted by the Congressional Research Service—Congress' non-partisan policy research arm—cited a 1938 memo from the U.S. Attorney General's office to conclude that the Antiquities Act "does not authorize the President to repeal proclamations and that the President also lacks implied authority to do so."
Christine A. Klein, a professor at the University of Florida Levin College of Law who has also written about the act, helped walk me through the legalities. "This stuff you see in the news about presidents acting unilaterally or beyond his authority [in designating monuments] is simply not true," she told me. "There have been only a handful of lawsuits challenging monuments designated by the president and in every case the presidential actions were upheld—and that included two cases before the Supreme Court."
The Antiquities Act, Klein explained, is a delegation of authority from Congress to the president. Accordingly, only a vote of Congress—not a simple swipe of the presidential pen—can revoke a monument.
Which is exactly what Rep. Chaffetz and allies have as a Plan B in case Zinke's "interesting" experiment doesn't go as planned. A close examination of Chaffetz's complaints about Bears Ears shows them to be pretty weak—and points to the larger agenda behind his campaign of small arms fire directed at the Antiquities Act.
Bears Ears opponents complain about the size of the monument, "one of the biggest land grabs in the history of the United States," as Chaffetz likes to say. The law is clear, however, that the size of a monument is a function of its preservation goals: If the idea is to preserve thousands of antiquities spread across a couple thousand square miles, you're going to need to protect a million-plus acres to get the job done. When Teddy Roosevelt set aside 800,000 acres to protect the Grand Canyon, mining interests complained as well—and then lost their case before the Supreme court.
Bears Ears opponents also claim that this was an undemocratic process. "There is not a single … elected official that represents that area that's in favor of it," Chaffetz has said. Note the lawyerly wording there—"elected officials." What about the people who live in the region? When former Interior Secretary Sally Jewell and other federal officials traveled to southern Utah last summer for a hearing on the proposed monument, proponents—led by a historic coalition of Native American tribes—outnumbered opponents by three-to-one. According to a statewide poll take in the spring of 2016, 71 percent of Utahans supported the Bears Ears proposal.
The technical and procedural complaints disguise a larger ideological dislike of the Antiquities Act: Congressional Republicans hate the law, full stop. Rep. Rob Bishop, a Utah Republican who chairs the National Resources committee, has called the law "the most evil act ever invented" and has said that anyone who likes the Antiquities Act as written should "die" because he "needs stupidity out of the gene pool." Bishop, Chaffetz and others are angered by what they believe is federal overreach. Local communities, they argue, should decide how those lands are managed. I agree that local consultation is important—which is why those federal officials held the public hearings in the first place. But make no mistake: These are public lands and they belong equally to all citizens, everywhere.
Bishop and Chaffetz's ultimate goal isn't just to reverse the single national monument of Bears Ears, but to roll back the Antiquities Act altogether. Bishop has repeatedly introduced legislation to change the law. The congressman refers to his legislation as reform—but in this case, "reform" is synonymous with "weaken" and "render meaningless."
If you care about conservation and think the president should have the ability to protect lands when Congress fails to act, what is to be done? In the near term, as Trump and Zinke mull an attempt to revoke a monument by executive order, the fight is probably in the hands of lawyers. But eventually this issue will go to the floor of Congress. And when it does, the fate of this keystone environmental law will rest in your hands.
For more than a century, the Antiquities Act has protected some of America's most outstanding landscapes. If Congressional Republicans make good on their threats, it will be up to us to protect the Antiquities Act.
For more than a century, presidents have been using the Antiquities Act to save our national treasures, and President Obama's just-announced designation of the Organ Mountains-Desert Peaks National Monument in southern New Mexico shows exactly why this law is so indispensable.
Organ Mountains, moonrise.Organ Mountains Desert Peaks National Monument
At nearly 500,000 acres (making it by far the largest monument that President Obama has designated), Organ Mountains-Desert Peaks is packed with history, from archaeological sites to Billy the Kid's Outlaw Rock, to training areas for the Apollo space missions. The canyons and jagged peaks of the region's mountain ranges are both beautiful and unique.
My family and I experienced that beauty firsthand last November when we hiked the Dripping Springs Trail together with many of the folks who've been working for years to gain this protection.
It's estimated that the new monument will attract enough new outdoor recreation and tourism to give a $7.4 million boost to the local economy. No wonder the designation received strong local support across the board—from business owners to elected officials to residents.
As Howard Dash, a member of the Organ Mountains-Desert Peaks Action Team of the Rio Grande Chapter's Southern Group, told me: "In Las Cruces, our team has worked hard for the designation of the national monument. It was through the Sierra Club's support that we were able to focus that effort to make it a reality. Las Cruces will be a better place for it."
Organ Mountains-Desert Peaks is the eleventh national monument designated by President Obama under the Antiquities Act and, in every instance, his administration has bent over backward to get input from nearby communities and to select places that are rich in both cultural and natural heritage. In other words, the Antiquities Act is being used exactly as intended.
That fact, however, didn't keep the current U.S. House of Representatives (already notorious for being the most anti-conservation in decades) from attempting to snatch failure from the jaws of success. Earlier this year, in a close vote, the House passed a bill that would gut the Antiquities Act.
Obviously, anyone who loves wild places and wants to see them protected, knows that's a terrible idea. Many excellent candidates for national monument protection, such as Idaho's Boulder-White Clouds, Arizona's Grand Canyon Watershed, and Utah's Greater Canyonlands, are still waiting. But the repercussions of losing the Antiquities Act would reverberate beyond the loss of new monuments. Remember when our national parks were closed because of the federal government shutdown? Fourteen of those national parks were reopened with funding from state governments because the states couldn't afford to lose the substantial revenue the parks generated for nearby communities. Of those 14 parks, nine were first protected as national monuments—thanks to the Antiquities Act.
Without the Antiquities Act, it's impossible to say exactly how much poorer our national heritage would be, but there's no question it would be poorer, not just for us, but for every generation that follows. President Obama deserves a lot of credit for using the authority granted to him by the Antiquities Act to protect special places like Organ Mountains-Desert Peaks, and for using it exactly the way it is supposed to be used.
Of course, anytime that Congress decides to use its own considerable authority to protect public lands, I'll be the first to stand and applaud. In the past five years, though, that's happened exactly once, which puts the tally at Obama 11, Congress 1. During this 50th anniversary year of the Wilderness Act, wouldn't it be nice to see a closer score?