On December 4, 2017, President Trump issued two Presidential Proclamations reducing the size of Bears Ears and Grand Staircase-Escalante National Monuments by more than 800,000 acres and 1.1 million acres, respectively.  Bears Ears and Grand Staircase-Escalante National Monuments had been previously created by Presidents Obama and Clinton pursuant to the Antiquities Act of 1906.  The announcement by the Trump Administration to scale-back those designations is already being challenged in court, as land conservation groups dispute whether the President has authority under the Antiquities Act to modify or reduce the scope of previously designated national monuments.

The Antiquities Act authorizes the President, in his discretion, to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”  The Act also provides that the President “may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”  As previously discussed on this blog, the central question to be litigated is whether the Antiquities Act’s delegation of authority from Congress to the president to create national monuments also includes the power to abolish or modify previously created national monuments.

On its face, the Act contains no explicit authorization to modify an existing monument.  Therefore, land conservation groups and other opponents will argue that President Trump’s proclamations are invalid because he lacks express authority for them.  It is anticipated that the Trump Administration will argue that it has implied authority to modify an existing monument to comply with the Act’s instruction that national monuments “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

The legal battle to define the president’s authority under the Antiquities Act could have far-reaching implications for federal land management throughout the United States. Interior Secretary Ryan Zinke recently conducted a review of approximately a dozen national monuments and could recommend further modifications to those monuments depending on the outcome of the litigation related to Bears Ears and Grand Staircase-Escalante.

For now, President Trump’s decision to reduce Bears Ears and Grand Staircase-Escalante fulfills a campaign promise and restores large portions of Utah to multiple use management.  According to the Presidential Proclamations, public lands removed from Bears Ears and Grand Staircase-Escalante shall be made open to entry, location, and disposition under applicable mining, mineral and geothermal laws starting on February 2, 2018, subject to existing rights and other applicable laws.