In a new Department of Justice legal opinion written May 27 but released Tuesday, Lanora Pettit, who runs the Office of Legal Counsel (OLC), stated that Donald Trump can abolish two national monuments designated by President Joe Biden. And presumably, he or any president, can abolish or shrink monuments designated as far back as Teddy Roosevelt. He pushed Congress to pass the Antiquities Act of 1906 that authorizes presidents to establish monuments. His 12th choice: the Grand Canyon. If the legal argument holds in the court, say hello to oil drilling and uranium mining on the South Rim of the canyon.
Pettit begins with:
The Antiquities Act of 1906 permits a President to alter a prior declaration of a national monument, including by finding that the “landmarks,” “structures,” or “objects” identified in the prior declaration either never were or no longer are deserving of the Act’s protections; and such an alteration can have the effect of eliminating entirely the reservation of the parcel of land previously associated with a national monument.
This is the opposite of what a 1938 OLC opinion stated. It held that designations of monuments are the same as acts of Congress and thus, only Congress ca n abolish a monument. Pettit argued to the contrary that “presidents have long been understood to have the power to come to a different factual decision regarding whether particular objects within a previously reserved monument merit protection. For large parcels with multiple monuments (like Chuckwalla and Sáttítla Highlands), there is no principled distinction between determining that one object is not worth protecting or all of them — and, by operation of law, no reasoned distinction between reducing and eliminating the parcel.”
In 2017, Trump shrank two national monuments, Bears Ears and Grand Staircase Escalante. Litigation was initiated, but after Trump was defeated in 2020, this was abandoned, a move that displeased monument advocates who wanted the matter settled permanently. Biden restored the two monuments close to their previous designations. The specific monuments addressed by Pettit are Chuckwalla and Sáttítla in California. Biden designated both near the end of his term of office.
The Trump 2.0 administration has focused on shrinking or abolishing those two as well as other national monuments: Bears Ears and Grand Staircase-Escalante national monuments in Utah, Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon and the Ironwood Forest monuments in Arizona, and the Organ Mountains-Desert Peaks monument in New Mexico.
Jennifer Yachnin at E&E News spoke with Justin Pidot, a law professor at the University of Arizona who previously worked at White House’s Council on Environmental Quality. He said the OLC opinion marks a “radical shift” that could potential impact dozens of monuments now and into the future. “This will go down as one of the most significant rollbacks in conservation in history,” he said, noting that acting on this could reduce the permanence of monument protections just to the term of any president.
Margaret Byfield, executive director of American Stewards of Liberty, which focuses on private property rights, told Yachnin the Pettit opinion is good because there is too much federal acreage, a common conservative complaint.
“The legislative record shows Congress never authorized presidents to use the Antiquities Act to protect millions of acres of land across America,” Byfield said. “The new legal opinion from the counsel to the president makes this clear and our hope is that President Trump will immediately begin eliminating, or at the very least, drastically shrink the massive national monuments created by the Clinton, Bush, Obama and Biden administrations. These lands need to be opened back up to the people for recreation and productive uses.”
What that means is more logging, more mining, more drilling.
John Leshy, an emeritus professor of law and former Interior Department lawyer under President Bill Clinton“ told The Washington Post, “Putting this out as a legal opinion is sort of tossing a bone to the right wing that hates national monuments and hates public land.”
The Pettit opinion might also clash with the Federal Land and Policy Management Act of 1976. But that’s unclear, according to James Salzman writing in the Dec. 7, 2017, issue of the Harvard Law Review:
2. The importance of the Federal Land Policy and Management Act of 1976 (FLPMA). This law comprehensively revised the management of public lands. FLPMA left the Antiquities Act in place and prohibited the Secretary of the Interior from modifying or revoking national monuments. The prohibition was strange because the Secretary never had the authority to create monuments, much less revoke them. As a group of law professors has argued, the legislative history makes it far more likely that this was an error left over from earlier drafts and that Congress expressed a clear intent to restrict executive branch authority from unilateral reductions in monuments.
3. Constitutional claims over separation of powers. The details of this argument will need to wait for reply briefs, but one can expect assertions that later presidents have inherent authority to redress illegal actions of their predecessors — land grab proclamations that were far larger than “the smallest area compatible” for proper protection.
Eventually the courts will determine whether a president can amend a prior Antiquities Act proclamation. That’s not terribly encouraging given the current Supreme Court.
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