Letter by 121 Law Professors on National Monument Review (July 6 2017)
WASHINGTON — Nothing gives U.S. presidents the authorization to cancel, shrink or otherwise weaken national monuments, four legal scholars have concluded in a new assay.
However timely and significant, the findings are likely to be ignored by President Donald Trump, who appears set on trying to rescind monument status on sites such as the one.35 million-acre Bears Ears National Monument in Utah, or at to the lowest degree shrink them. If he does, the administration volition almost certainly be challenged in court.
In their paper, three law professors from the University of Colorado, UCLA, and the Academy of California, Berkeley, and a kinesthesia research fellow at UCLA conclude that Congress, not the president, has sole legal ability to rescind or weaken protections for monuments designated nether the Antiquities Human action of 1906.
20-seven of America's national monuments, spanning more than 11 1000000 acres of land and about 760 1000000 acres of ocean, are threatened past a pair of executive orders signed past Trump final calendar month. One order tasks the Interior Section with reviewing all federal monuments 100,000 acres or larger that were established or expanded after January. 1, 1996. The other instructs the Department of Commerce to review all marine sanctuaries and monuments designated or expanded within the final 10 years.
Sean Hecht, a co-writer of the paper and co-executive director of the Emmett Institute on Climate Alter and the Environment at UCLA School of Police force, told HuffPost the Antiquities Act — signed by President Theodore Roosevelt more than a century ago — is "unusual" in that, dissimilar other statutes of that era, information technology did non grant presidents the authority to withdraw or revoke protections. The point of the police force is to allow for presidents to set aside areas for preservation — non take away protections put in place past their predecessors.
Furthering their argument, Hecht and the others betoken to a 1938 opinion by and so-Attorney Full general Homer Cummings and the Federal Land Policy and Direction Act of 1976, which conclude the constabulary does not allow for a president to reverse a monument.
"We're confident that our reading of the police is right," Hecht told HuffPost.
Kevin Lamarque / Reuters
The Antiquities Act authorizes the president to "declare past public proclamation historic landmarks, celebrated 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 exist national monuments." Sixteen presidents have used the law to designate 157 monuments.
No president has e'er tried to revoke a monument designation.
Trump'due south orders call for the pair of federal agencies to "review" recent designations and offering recommendations. What Trump and Interior Secretary Ryan Zinke have made clear, however, is that they are pushing for much more.
In his remarks last calendar month, Trump said he's looking to end "another egregious abuse of federal power," put "states back in accuse" and open upward at present-protected areas to "tremendously positive things." The law, he added, "does not give the federal government unlimited power to lock upwardly millions of acres of land and water, and it's time nosotros ended this abusive practice."
Zinke said last month that the police has "become a tool of political advocacy rather than public interest" and that past administrations have driveling information technology by ignoring its language specifying monuments exist "confined to the smallest area compatible with proper care and direction."
"Despite this clear directive, 'smallest area' has too often become the exception rather than the rule," Zinke said final calendar month.
In an attempt to make his point, Zinke noted that America's showtime monument, Devils Tower in Wyoming, designated by Roosevelt in 1906, was less than 1,200 acres. "Notwithstanding, in recent years, we've seen monuments bridge tens of millions of acres," Zinke said, a clear reference to marine monument designations and expansions by presidents George Westward. Bush and Barack Obama.
What Zinke fails to mention is that the size of several early monuments rival the designations of contempo years. In 1908, for example, two years after the Antiquities Human activity became constabulary, Roosevelt — of whom Zinke is an "unapologetic admirer and disciple" — designated more than 800,000 acres of One thousand Coulee equally a national monument. (Merely a few Obama-era land monuments are larger.)
Republican presidents Calvin Coolidge and Herbert Hoover also designated monuments over a million acres. Coolidge designated Alaska's Glacier Bay in 1925, and Hoover set aside California's Death Valley in 1937.
Hecht said he sees what the Trump assistants is doing — and saying — equally "wholly political." A look at history, he said, clearly shows that presidents, both Republicans and Democrats, have used the law to much the same scope and scale.
Ultimately, Hecht expects the Trump administration will move to abolish or shrink monuments, which will inevitably lead to a boxing in the courts. If that happens, Hecht said, he would expect a court to concord with the legal position he and the others outlined in their paper.
"For more than than 100 years, Presidents from Teddy Roosevelt to Barack Obama accept used the Antiquities Deed to protect our historical, scientific, and cultural heritage, frequently at the very moment when these resource were at run a risk of being exploited," the authors write. "That is the enduring legacy of this extraordinary police force. And it remains our all-time promise for preserving our public land resources well into the future."
The newspaper has been accepted for publication by Virginia Law Review Online.
Every bit part of its review, the Interior Department kicked off a public annotate period last calendar week. Comments relating to Bears Ears are due by May 26, while comments related to all other monuments must be submitted by July 10. Every bit of Thursday, more than than 45,000 comments had been submitted.
Read the full research paper here.
This article has been updated to reflect that three authors are full professors.
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Source: https://www.huffpost.com/entry/donald-trump-authority-national-monuments_n_591c8e92e4b034684b08da98?rdc=
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