This post originally appeared on the Harvard Law Review Blog

On December 4, 2017, President Trump announced his long-anticipated decisions to shrink two major national monuments in southern Utah. Trump shrunk the Bears Ears National Monument designated by President Obama at the end of 2016 from 1.35 million acres to 201,786 acres, a reduction of about 85%. The Grand Staircase Escalante National Monument was reduced by approximately 46%, from 1.87 million acres to a little more than one million acres. And more reductions at other monuments are expected to follow. In terms of reversing public land protections, these decisions are unprecedented in scale. Nothing comes even close.

Trump’s decisions have set the table for the most dramatic legal fight over the Antiquities Act since the Supreme Court unanimously upheld President Theodore Roosevelt’s 1908 designation of the Grand Canyon National Monument in 1920. So, how did we get here, and how is this battle likely to play out?

The History of the Antiquities Act

The original impetus for the Antiquities Act was a concern about looting of ancient artifacts from public lands. The looters were not only pothunters but also included major museums such as the American Museum of Natural History. In 1900, under pressure from archaeologists and their societies, three separate bills were introduced into the House Committee on Public Lands chaired by Iowa congressman John Lacey. These bills ranged from the very broad to the quite narrow. While all were designed to protect ancient artifacts, one would have allowed the President to set aside lands for their scenic beauty or to protect natural wonders, another would have simply made it a federal crime for individuals to harm antiquities on public lands, and the last would only have granted the Secretary of the Interior the power to set aside small tracts of public lands not exceeding 320 acres. Lacey sent these bills to Interior for review. Interior supported congressional efforts to stop looting, but the agency favored a broader bill that would have authorized the President to designate national parks “for their scenic beauties [and] natural wonders,” as well as to protect ancient ruins and “other objects of scientific or historic interest.” Congressman Lacey and some members of his committee pushed back against the Interior bill and over several years a compromise emerged that removed the authority to designate national parks, but retained the language from the original Interior proposal allowing the president to designate objects of historic or scientific interest. See generally, Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 478–85 (2003) (hereafter, Monumental Legacy).

As enacted, the Antiquities Act authorizes the President—

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 proper care and management of the objects to be protected. . . .

54 U.S.C. § 320301.

Theodore Roosevelt was President when Congress passed the Antiquities Act in 1906, and he wasted no time employing the new law, designating four national monuments that year, five more in 1907, and eight more in 1908 and 1909 before he left office. Monumental Legacy at 489–91. Perhaps the most important of these was the more than 800,000-acre Grand Canyon National Monument designated in 1908. Grand Canyon was important not only because it protected one of our most prized national treasures but also because it spawned the lawsuit that sustained the President’s power to designate large landscapes as national monuments.

Ralph Henry Cameron was a mining claimant and Arizona politician who was using the General Mining Law of 1872 to exploit tourists by charging them a dollar to pass through his mining claims on the Bright Angel Trail. Cameron’s enterprise ran afoul of Santa Fe Railroad, which had opened a hotel on the south rim of the Grand Canyon. Complaints from its guests who wanted to hike the trail down to the Colorado River prompted the Railroad to ask Interior to investigate Cameron’s claims. In 1909, just one year after the monument had been designated, Interior Secretary James Garfield determined that Cameron’s claims were not valid. Nonetheless, Cameron refused to vacate the land, however, and the federal government subsequently sued to evict him. Cameron responded by asserting that his mining claims were valid and, further, that the President lacked the authority to designate the Grand Canyon under the Antiquities Act. Monumental Legacy at 490–92. In a unanimous decision in Cameron v. United States, the Supreme Court disagreed, noting that the Grand Canyon was plainly an object of scientific interest as “it is the greatest eroded canyon in the United States if not the world.”

Over its long history, the Antiquities Act has been used many times by Republican and Democratic presidents to protect both small historic sites, as well as large tracts of public land. Although presidents may not designate national parks, Congress has repeatedly signaled its support for these presidential monuments by redesignating many of the most remarkable ones as national parks. In addition to the Grand Canyon, President Roosevelt set aside the Mt. Olympus National Monument, which is now part of Olympic National Park. Zion National Park was first protected by William Howard Taft as Mukuntuweap National Monument. Woodrow Wilson established Sieur Du Monts, now Acadia National Park. William Harding set aside Bryce Canyon, Calvin Coolidge protected Glacier Bay, and Herbert Hoover set aside Saguaro, Death Valley, and Arches — all now protected as national parks. Monumental Legacy at 493-494.

Decades of Disagreement

Despite their enormous popularity with the general public, national monument designations have historically attracted their fair share of controversy. Woodrow Wilson cut the more than 600,000 acre Mt. Olympus National Monument nearly in half, allegedly to provide timber to support the war effort, but almost certainly also to appease the timber industry and Forest Service, which had opposed the monument. See Carten Lien, Olympic Battleground: Creating and Defending Olympic National Park 51–52 (2000). Wilson’s decision created an outcry from the nascent environmental movement and ultimately, much of that land was restored to protected status when Congress created the Olympic National Park in 1938.

When Franklin Roosevelt created the Jackson Hole National Monument, now part of the Grand Teton National Park, local politicians were outraged. A young Teton County Commissioner, Cliff Hansen, who later became a U.S. Senator, drove an illegal cattle drive through the new monument and helped persuade congress to adopt the only amendment ever enacted to the Antiquities Act, banning new monuments in the State of Wyoming. 54 U.S.C. § 320301(d). Much later, Hansen and other local opponents of the monument acknowledged that their opposition to the monument had been a mistake. Monumental Legacy at 498, n.159.

Observed from this backdrop, the current controversy over the two big monuments in Utah, and several others that appear to be in Trump’s sights, is not especially new. What is different today is the commitment of monument supporters to fight to preserve the public land protections that the original monuments represent. On the very day of Trump’s announcements two lawsuits were filed over the Bears Ears decision — one by local native tribes and another by environmental groups. More lawsuits followed over both Bears Ears and Grand Staircase-Escalante. At the time of this writing, three lawsuits over Bears Ears were all in front of Judge Chutkan in the Federal District Court for the District of Columbia. A lawsuit filed by the Grand Staircase-Escalante Partners over the Grand Staircase-Escalante decision has been assigned to Judge Sullivan in the same court.

Key Questions Facing Courts Today

These cases raise fascinating legal questions involving both process and substance. On the process side is the fundamental question of how the court should approach the litigation. The Supreme Court has made clear that the President is not an agency for purposes of the Administrative Procedure Act, and thus the court lacks a clear roadmap for how to proceed with the case. Two particular questions stand out. First, what is the standard of review in such cases? And second, should the courts resolve these cases on the administrative record made to support the President’s decisions, or should courts hold an evidentiary hearing to ascertain whether the proclamations are consistent with the requirements of the law?

Regarding the scope of review, it seems likely that the court will follow the lead of the federal district court in Wyoming in a pre-APA case that challenged the Jackson Hole National Monument. In Wyoming v. Franke, the court found that it had “a limited jurisdiction to investigate and determine whether or not the Proclamation is an arbitrary and capricious exercise of power under the Antiquities Act so as to be outside of the scope and purpose of that Act . . . .” The court admitted that “if a monument were to be created on a bare stretch of sage-brush prairie in regard to which there was no substantial evidence that it contained objects of historic or scientific interest, . . . [it] would undoubtedly be arbitrary and capricious . . . . ” But the court found sufficient “evidence of experts and others as to . . . objects of historic and scientific interest” that it was bound to uphold the decision even if it did not fully agree with it. If one were to apply this standard to the original Grand Staircase and Bears Ears proclamations, then it seems likely that they would be found to comply with the law. Both proclamations contain a detailed description of the cultural, biological, geological, and historic resources that Presidents Clinton and Obama intended to protect. And, while a future President might reasonably disagree with these decisions, one would be hard pressed to describe the original decisions as arbitrary.

As for the record, President Clinton’s Secretary of the Interior Bruce Babbitt transmitted detailed memorandum to the President to support the original Grand Staircase-Escalante proclamation. President Obama’s Interior Secretary, Sally Jewell sent to the President a similar memorandum to support the Bears Ears proclamation. Although these memoranda were not released to the public, they laid out the case for the monuments, and included a comprehensive bibliography of sources deemed to support the monument designation. It does not appear that Secretary Zinke has made any effort to refute these memoranda, although he did prepare an undated memorandum for the President addressing 27 separate monuments that had been designated since 1996. So, the court could require and the parties could agree that these, along with any publicly released documents and any additional documents prepared by the Trump Administration, should be recognized as the administrative record for purposes of judicial review. This would obviate the need for a hearing on the original and subsequent proclamations, which could easily cascade out of control.

Somewhat surprisingly, the primary rationale put forth in the Trump proclamations for shrinking the Bears Ears and Grand Staircase-Escalante monuments was that the Obama and Clinton proclamations were not limited to the smallest area compatible with the protection of the objects identified in the original proclamations. This kind of reasoning is not necessarily new. In a 1938 opinion, Attorney General Cummings appears to use it to justify acquiescing to monument modifications, even as he found that the President lacked the authority to abolish a monument altogether. 39 U.S. Op. Atty. Gen. 185. But given the substantial mountain of evidence marshalled to support the original proclamations and the limited scope of judicial review suggested by Wyoming v. Franke, and likely to be followed in these new cases, the government will find it difficult to defend the new decision on the “smallest area compatible” grounds alone.

On the other hand, and notwithstanding the language in the new proclamations, Trump will likely argue that he has the authority to shrink a monument created by a predecessor irrespective of whether the original monument was valid. This is the legal issue that has captured the attention of legal scholars and commentators, at least since the day that Trump was elected.

I have previously argued, first in 2003, and more recently in a joint article published last year, that Presidents lack the authority to modify or revoke monuments decisions issued by their predecessors. The basic argument is straightforward. The Property Clause of the constitution gives Congress plenary authority over public lands. While the Antiquities Act may delegate power to the President to “reserve” public lands as national monuments, the Supreme Court has made clear that delegations of congressional power must be construed narrowly. And because the Antiquities Act says nothing of the authority to modify or revoke a reservation once made, the statute is properly construed to grant “one-way” authority.

Reinforcing this point is the sharp contrast between the Antiquities Act and other contemporaneous statutes such as the Forest Service Organic Administration Act and the Pickett Act of 1910. Both of these statutes authorized the President to withdraw public land for particular purposes and both gave the President the additional authority to revoke and/or modify these withdrawals. As Attorney General Cummings wrote in the 1938 opinion referenced earlier, “the Executive can no more destroy his own authorized work, without some other legislative sanction, than any other person can.”

Those who support presidential power to modify monuments claim that the power to reserve public lands as national monuments implicitly encompasses the power to reverse those decisions, just as presidents can modify and rescind executive orders and agencies can modify or rescind their regulations. But a President who issues or modifies an executive order is exercising direct executive power granted under Article II of the Constitution. And an agency that modifies or rescinds rules is doing so pursuant to the express rulemaking authority granted under the Administrative Procedure Act to “formulat[e], amend[], or repeal[] a rule.” They also point to the fact that Presidents have in the past modified monuments, as if past practice is enough to justify an otherwise illegal act. But because none of these decisions has ever faced a judicial challenge, their legality has never actually been tested. Moreover, until the recent decisions on Grand Staircase-Escalante and Bears Ears, no president has attempted to modify a monument since Congress enacted the Federal Land Policy and Management Act (“FLPMA”) in 1976. That turns out to be an important event for understanding the Antiquities Act.

FLPMA came about as a result of recommendations from the Public Land Law Review Commission in a report released in 1970. Among other things, that report recommended consolidating all of the public land withdrawal authorities, including the Antiquities Act, into a general withdrawal provision contained in the new law. While Congress accepted most of the Commission’s recommendations, it explicitly chose to retain the Antiquities Act, and it further made clear in the House Report on the final bill, that FLPMA “would … specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.” H.R. Rep. 94-1163 (1976).

Critics complain that the legislative history of FLPMA cannot be used to interpret the Antiquities Act. This argument misses the mark for two reasons. First, the Antiquities Act is clear on its face. The gloss of FLPMA’s legislative history merely reinforces the most logical reading of the text of the statute. Second, while FLPMA does not amend the Antiquities Act, it was an important vehicle for reviewing and reconsidering all of the federal government’s authorities to withdraw and reserve public lands for particular purposes, including the Antiquities Act. Thus, debates around FLPMA should be understood and respected for reflecting Congress’ views about public land withdrawals generally, including its views on the continuing importance of the Antiquities Act as an instrument for furthering public lands policy.

While the technical legal arguments that favor a narrow reading of the President’s authority under the Antiquities Act are compelling, they risk obscuring the important policy reasons that might have persuaded Congress to limit the President’s Antiquities Act power in one direction. Federal public lands face constant risks of undue degradation by mining claimants and other mineral developers, by ranchers grazing livestock, and by off-road vehicle users, among others. The Antiquities Act allows a President to protect the status quo on public lands and prevent their further degradation until Congress decides to do something else with those lands. This one-way protection policy has worked remarkably well. While Congress has abolished several minor monuments over the years, it is telling that it has never abolished or shrunk any significant national monument. On the contrary, when Congress takes action on monuments, it is often to expand them and elevate their status to that of a national park.

Ultimately, of course, the last word on the myriad legal issues raised by the recent proclamations on Grand Staircase-Escalante and Bears Ears will come from the federal courts, and predicting the outcome of litigation is always fraught with risk. But even if the case is closer than I suspect it will be, the special place that our public lands hold in the hearts and minds of the American people will not likely be lost on the courts, and could, in the end, tip the scales in favor of their protection.

Mark Squillace is a CU Law Professor and a member of the GWC Board.