What to know about Trump's national monuments executive order

What to know about Trump's national monuments executive order
© Getty

President Trump initiated a major review this week of his predecessors’ use of the Antiquities Act to protect land and water, which could lead to some rollbacks of previous protections.

The review is focused primarily on the controversial Bears Ears National Monument in Utah, but it will cover dozens of national monuments going back to 1996.

At the heart of the issue is Democrats’ desire to protect land and water they believe to be important, and Republicans’ opinion that those protections are frequently too severe and limiting for businesses.

Trump is solidly on the latter side, calling some such designations “another egregious abuse of federal power.”

ADVERTISEMENT

Here are some of the essential things to know about the Antiquities Act and Trump’s action.

 

The Antiquities Act was meant to protect American Indian artifacts

The Antiquities Act was passed in 1906, giving presidents unilateral power to protect nearly any land or water already owned by the federal government.

“It was passed around the turn of the last century, when folks discovered a lot of these Anasazi sites that had cultural artifacts and things like that,” said John Freemuth, a public policy professor at Boise State University who studies public lands.

The sites are called national monuments, though they’re not monuments in the traditional sense.

Congress didn’t limit the act to Indian sites, meaning presidents have the power to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

An early high-profile example is President Theodore Roosevelt’s protection of the Grand Canyon in Arizona. Congress later turned the monument into a national park.

Since then, monuments have been created for a variety of reasons, usually to protect historical or natural resources.

 

Numerous designations have been controversial

Over the years, presidents’ unilateral monument designations have often been highly controversial among Republicans, locals and businesses that had hoped to use the land for purposes such as oil, natural gas or coal extraction.

For example, President Clinton’s Grand Staircase-Escalante National Monument in Utah restricted the potential for future mining on the site, and President Obama’s creation of the Northeast Canyons and Seamounts Marine off the New England coast restricts commercial fishing in that area.

“These monument designations that have come at the behest of special interest groups have often been extremely harmful to those who have traditionally utilized” the areas, said Del. Amata Radewagen (R-American Samoa), who opposes the Papahānaumokuākea Marine National Monument.

Opponents frequently complain that affected parties were not sufficiently consulted with.

Presidents are not obligated to consult anyone but usually hold extensive meetings to gather input.

 

Trump’s executive order specifically targets the outreach process.

“Monument designations that result from a lack of public outreach and proper coordination with state, tribal, and local officials and other relevant stakeholders may also create barriers to achieving energy independence, restrict public access to and use of federal lands, burden state, tribal, and local governments, and otherwise curtail economic growth,” Trump’s order says.

Freemuth said Trump and Interior Secretary Ryan Zinke may use that language to justify changes.

“It wouldn’t necessarily hurt to stipulate some sort of procedures to make sure the president and his people do certain involvement with various groups,” he said.

 

Republicans want big changes

Congressional Republicans have been working for years to restrict the president’s ability to create monuments.

Their ideas include requiring that designations go through the environmental review process, which would require public input, or force Congress to approve any new designation.

“It was created with noble intent and for limited purposes, but has been hijacked to set aside increasingly large and restricted areas of land without public input,” Rep. Rob BishopRobert (Rob) William BishopLand and Water Conservation Fund is good for business Trump administration weakens methane pollution standards for drilling on public lands Looking to the historic leasing program to alleviate the maintenance backlog in national parks MORE (R-Utah), chairman of the House Natural Resources Committee, said in a statement.

Both parties see Trump’s order as a step toward Antiquities Act changes, since it allows Zinke to identify changes either in the executive branch or Congress.

But Democrats and conservationists see those changes as a threat to a landmark policy for the country’s public lands.

Trump’s “executive order threatens the cherished spaces and cultural sites across the country that make America so unique,” said Sen. Tom CarperThomas (Tom) Richard CarperOvernight Health Care: Senators target surprise medical bills | Group looks to allow Medicaid funds for substance abuse programs | FDA launches anti-vaping campaign for teens Bipartisan senators unveil proposal to crack down on surprise medical bills Super PACs spend big in high-stakes midterms MORE (D-Del.).

 

Trump’s power to make changes is untested

Though previous presidents have reduced the size of protections, it’s unclear if Trump has the power to rescind entire monuments, the ultimate goal of opponents of sites like Bears Ears.

Rescinding a monument hasn’t been tested in court, and the Antiquities Act didn’t specifically give presidents that power. Conservationists and their allies say Trump can’t do it.

“There is no legal authority for President Trump to rescind existing national monuments,” said Jayni Foley Hein, policy director of the progressive Institute for Policy Integrity at New York University.

But conservatives say that if Congress gave the power to a president to create a monument, it also gave the power to take it away.

“Anyone who has read the actual text of the Antiquities Act knows that the law has been greatly abused by recent administrations,” said Sen. Mike LeeMichael (Mike) Shumway LeeUtah group complains Mia Love should face criminal penalties for improper fundraising Senate approves 4B spending bill Overnight Health Care: Opioid legislation passes overwhelmingly | DOJ backs Cigna-Express Scripts merger | Senate passes ban on pharmacy gag clauses MORE (R-Utah).

 

Big change would have to come from Congress

Any changes to the Antiquities Act itself would have to come from Congress, so Trump’s order could lead to a renewed push for legislative reform.

“I would like to see a reform, a modernization of Antiquities that would require them to get more input before they actually make the designation … and they wouldn’t have monuments in the water, or that have opposition from local mayors, even the Democrats, or territorial governors or others,” Bishop said.

But legislative changes would require 60 votes in the Senate, and Republicans only have 52 seats, making it an unlikely prospect without significant Democratic buy-in.

Democrats would be prepared with “intense and almost unanimous” opposition, said Rep. Raul Grijalva (Ariz.), the top Democrat on the House Natural Resources Committee.

“I’m pretty sure that at the end of it, Trump is going to say it’s time to reform, restrict, narrow the Antiquities, and I think that is going to cause a pretty huge backlash,” he said, adding that most monuments have local support.

— Devin Henry contributed to this story.