January 19, 2017

Trump can scale back monument designations, experts say

Legal experts say the Trump administration has the authority to scale back national monuments designated by other presidents, but that such action would be challenged in court.

The Owyhee River canyon in Oregon, part of an area proposed to become a national monument. Legal experts say the Trump administration has the authority to reduce the scale of any national monument established by previous presidents. They warn, however, that such a move would certainly be challenged in court. (COURTESY BUREAU OF LAND MANAGEMENT)

Mateusz Perkowski
Capital Press

The Trump administration could sharply revise controversial national monument designations made by its predecessor, though it’s unclear such changes would be a high priority, experts say.

Pro-monument environmental groups would also likely seek to counteract such moves, testing largely uncharted legal waters.

While the Trump administration could not entirely revoke earlier national monument designations, their size and land use restrictions within their boundaries could be modified, said Karen Budd-Falen, an attorney who represents ranchers in public land disputes.

“All that stuff is fair game for the Trump administration,” she said. “It’s pretty clear they have maneuvering room.”

Theoretically, Trump could go beyond recent designations — such as the expansion of the Cascade-Siskiyou National Monument in Oregon — and amend monuments created by presidents before Obama, Budd-Falen said.

“There’s not a statute of limitations or a time frame on these things,” she said.

Ranchers fear that grazing will be increasingly restricted within the 49,000 acres recently added to the Cascade-Siskiyou National Monument.

Under an opinion issued in 1938, the U.S. Attorney General said Congress delegated its authority to create national monuments to the president in the Antiquities Act.

However, the power to revoke such designations belongs solely to Congress, not to succeeding presidential administrations, according to the opinion.

Even so, the Trump administration could greatly reduce the scale of a national monument by shrinking it to a quarter-acre, for example, Budd-Falen said.

The Republican-controlled Congress could also outright overturn a national monument designation or simply excise tracts that are most problematic for ranchers and other natural resource users, said Scott Horngren, an attorney with the Western Resources Legal Center, which litigates on behalf of agriculture and timber interests.

“They could use a scalpel,” said Horngren.

With the multitude of contentious issues facing the Trump administration and Congress, though, it’s open to question whether they’ll want to tackle disputes over national monuments, he said. “We just don’t know that.”

If the Trump administration did drastically roll back the size of a national monument, environmental groups could argue in federal court that the reduction was made arbitrarily in violation of the Antiquities Act, Horngren said.

Under that statute, national monuments should be as small as possible to protect resources within the monument, so the Trump administration could argue that his predecessor’s boundaries were too expansive, he said.

Though opponents of national monument designations tend to cast them as “midnight regulations” by outgoing presidents, in reality, new monuments and expansions must be justified in “rationales,” said Michael Blumm, an environmental law professor at Lewis & Clark Law School.

If the Trump administration decided to significantly shrink a national monument, it would have to provide a similarly well-reasoned justification, he said.

“The courts have taken seriously those rationales,” Blumm said. “There can’t be any arbitrary decision-making.”

Presidents do have a “fair amount” of flexibility in deciding what uses are permitted within national monuments, as long as they don’t undermine the monument’s fundamental values, he said.

A major reduction in a national monument’s boundaries would be unprecedented, partly because past presidents have been reluctant to scale back earlier designations, Blumm said.

The Bush administration, for example, defended national monuments created by the Clinton administration, he said.

The issue goes beyond partisan politics and resonates with concerns about the institution of the presidency, Blumm said. “Presidents like the monument authority, especially on their way out, because it provides them with a legacy.”