Author: H. Sterling Burnett

As I previously discussed here, the Antiquities Act is probably unconstitutional, and by modifying the size of two monuments, Grand Staircase/Escalante and Bears Ears, President Trump has reined in its worst excesses. But the law remains. While no president has ever undone a national monument designation entirely, as John Yoo and Todd Gaziano explain in a study published by the American Enterprise Institute, previous presidents have downsized national monuments on 18 occasions and modified the management of a number of other monuments. No presidential action to downsize or change the management of a monument has ever been successfully challenged in the courts, however, so it is likely Trump’s actions are legal and will withstand judicial scrutiny. Trump has yet to act on Zinke’s other recommended monument changes and it is unclear if he will.

Although I think Trump’s actions are justified and, indeed, that he should reverse and rescind more monument designations, in truth no president’s actions alone can fix the problems inherent to the dictatorial, entirely undemocratic, and arguably unconstitutional Antiquities Act. As Trump and other presidents before him have shown, what one president establishes as a monument, later presidents can modify.

Indeed, Trump himself yielded to the siren song luring Presidents to declare national monuments. Less than a year after he dramatically reduced the size of two national monuments, he designated 525 acres in Kentucky, once the site of a civil war camp and depot, the Camp Nelson National Monument.

As part of his program to remove the government’s boot-heel off the neck of state governments and American workers and businesses, candidate Donald Trump promised to review and, where appropriate, reverse where he felt it was justified, national monuments declared not just by Obama but going back two decades. As I discussed here, using the Antiquities Act has been a favorite technique of many presidents to satisfy pressures from environmentally powerful constituents.

Within months of taking office, Trump issued an executive order directing then-Interior Department secretary Ryan Zinke to review all presidential monument designations or expansions of more than 100,000 acres since January 1, 1996, to ensure they were limited strictly to the smallest area necessary to care for the objects or features to be protected. At the time, Trump called the size and number of national monuments created by Obama “an egregious abuse of power.

Going back to January 1, 1996, was not coincidental. At that time President Bill Clinton created the 1,880,461-acre Grand Staircase Escalante National Monument, in Utah, also against the state’s entire congressional delegation’s wishes. The Grand Staircase declaration was as controversial in its time as the 2016 Bears Ears designation by Obama.

By September 2017, Zinke recommended the president shrink the size and/or modify the management of at least 10 national monuments. In particular, Zinke recommended reducing the size of Bears Ears and Grand Staircase-Escalante national monuments in Utah, Nevada’s Gold Butte, and Oregon’s Cascade-Siskiyou. He also recommended shrinking two marine monuments in the Pacific Ocean and amending the proclamations for 10 monuments to allow for various commercial activities previously allowed in these areas but now restricted.

On December 5, 2017, Trump reduced the size of the Grand Staircase-Escalante Monument by approximately 800,000 acres, to just over 1 million acres, and shrunk the Bears Ears National Monument from 1.35 million acres to 201,876 acres.