It's magical legal thinking to say Trump can't reverse Obama's national monuments

The northernmost boundary of the proposed Bears Ears region in Utah on May 23, 2016. President Donald Trump signed an executive order on April 26 directing his interior secretary to review the designation of dozens of national monuments on federal lands. (Francisco Kjolseth / Associated Press)

Opinion-Editorial

By Todd Gaziano and John Yoo
Los Angeles Times

Suppose President Trump declared much of California, Nevada and Oregon — states that just happened to vote against him — off-limits to economic development and recreational use. Suppose he barred all mining, grazing, agriculture and even camping from these states’ federal lands (roughly 46% of California, 85% of Nevada and 53% of Oregon) under a law to preserve national monuments of scientific and historical interest.

According to some environmentalists and legal scholars, we would have to live with this result. They believe a president can permanently designate federal land as a monument and restrict its uses — even if we’re talking about millions of acres (138 million acres in the example above), far removed from any real historical or scientific significance, and over the objections of the states involved.

But a presidential power to create permanent national monuments flies in the face of the plain text of federal law, the conventional relationship between presidents and Congress and historical understandings of executive power. Trump has the right to reverse the national monuments created by previous presidents without an act of Congress, but by the same token, the Constitution creates a check by allowing future presidents to reverse Trump too.

In late April, Trump announced a plan to reconsider the size of recently designated national monuments, principally those that withdrew vast amounts of land in the West and in the oceans near Hawaii and New England from some forms of economic development. His orders sparked a firestorm of criticism from environmentalists and sympathetic public officials, who have argued in these pages that Trump cannot undo a national monument once declared by a past president.

The power to create national monuments derives from the Antiquities Act of 1906. It’s a broad presidential power, although monuments must be limited to the smallest area necessary to preserve landmarks and other objects of interest. Like many federal laws, the Antiquities Act delegates authority to the executive branch but does not address how to undo the use of the power. Those who defend permanent, unchangeable national monuments argue that the act’s silence on reversal means reversal is impossible. But there is no reason to believe that the Antiquities Act can uniquely evade the fundamental principles that apply throughout our government and laws.

Almost every grant of power, by Constitution or statute, implicitly also includes the power of reversal. Congress has no express authority in the Constitution to repeal a law, but it does so by passing new laws. The Supreme Court doesn’t have express authority to overrule a past precedent, but it does so in a later decision. As the federal courts have recognized, the president can fire Cabinet officers or abrogate treaties (both of which require Senate advice and consent), even though the Constitution doesn’t mention it. No Congress, Supreme Court or president can bind their successors from using their branch’s constitutional powers.

The courts have applied the same legal principle of reversal when Congress delegates lawmaking power to the executive branch, as in the Antiquities Act. For example, agencies granted authority to issue regulations also can revoke or modify them, and presidents often repeal executive orders, many of which are based on statutory powers. The courts have never held that the underlying statutory authority once used cannot be revoked.

Indeed, those who claim that the Antiquities Act does not grant a reversal power cannot find a single case in another area of federal law that supports that contention. To override the norm, legislators have to clearly limit reversal powers in the original law; the plain text of the Antiquities Act includes no such limits.

Those who consider monument proclamations sacrosanct place most of their hopes in a cursory legal opinion issued by U.S. Atty. Gen. Homer Cummings in 1938. No court has ever approved of the Cummings opinion. Our research explains the many holes in its reasoning, including Cummings’ mistaken reliance on an 1862 attorney general opinion that interpreted a different law, with utterly different facts, and, in any case, reached a conclusion contrary to Cummings’ position.

In a letter to the Interior Department, California Atty. Gen. Xavier Becerra asserts that Trump cannot legally revoke or reduce six national monuments in California. Besides his reliance on Cummings’ flawed opinion, Becerra’s statutory citations don’t help his case. He primarily cites ambiguous comments made in House committee deliberations related to the Federal Land Policy and Management Act of 1976. But that is a separate statute, on a different subject, that did not alter the text or plain meaning of the Antiquities Act. If that’s the best that California officials have on their side in this debate, they should lose.

Californians and others who want to maintain national monuments without change should focus on the merits of the designations rather than magical legal thinking. No president is likely to significantly disturb a national monument that enjoys strong local support. The public comment period for land-based monuments, including all those in California identified for review, is open until July 10. Comments on marine monuments under review are due by July 26.

Prior presidents acted unilaterally to create or vastly expand several national monuments. It’s simply unrealistic to pretend that acts created by unilateral presidential decrees cannot be undone in the same manner.

Todd Gaziano is the executive director of the Pacific Legal Foundation’s D.C. Center and its senior fellow in constitutional law. John Yoo is a law professor at UC Berkeley and a visiting scholar at the American Enterprise Institute. They are the authors of an AEI paper on national monuments.

Trump executive order puts Sand to Snow, Mojave Trails national monuments in crosshairs

The Mojave Trails National Monument spans 1.6 million acres that offer a stunning mosaic of rugged mountain ranges, ancient lava flows and spectacular sand dunes. (Photo: Courtesy of Jack Thompson/The Wildlands Conservancy)

Sammy Roth
The Desert Sun

President Donald Trump has called for an unprecedented review of national monuments established by Barack Obama, George W. Bush and Bill Clinton, calling into question the future of the Sand to Snow and Mojave Trails monuments in the California desert.

Obama designated those monuments last year, thrilling conservationists and outdoors enthusiasts who had long fought for the beloved landscapes to be protected from development. The Sand to Snow National Monument stretches from the desert floor near Palm Springs to the peak of Mount San Gorgonio, comprising 154,000 acres. The Mojave Trails monument is larger, spanning 1.6 million acres and surrounding historic Route 66, between Mojave National Preserve and Joshua Tree National Park.

Trump's executive order directs Interior Secretary Ryan Zinke to review all monuments designated by presidents since 1996. Zinke said the review would be limited to monuments larger than 100,000 acres, but the text of the executive order creates an exception for cases "where the (Interior) Secretary determines that the designation or expansion was made without adequate public outreach." That broad loophole means the California desert's 21,000-acre Castle Mountains monument — designated by Obama at the same time as Sand to Snow and Mojave Trails — may also be vulnerable.

Republican politicians railed against Obama's liberal use of the 1906 Antiquities Act to set aside public lands and waters for conservation. Obama expanded or designated new monuments 34 times, more than any other president, protecting more than 5.7 million acres of land and nearly 550 million acres of water, most of it surrounding Hawaii and other Pacific Ocean islands, according to a Desert Sun tally.

In a signing ceremony Wednesday, Interior Secretary Ryan Zinke said no decisions have been made about specific monuments, emphasizing that Trump's executive order "does not remove any monuments... and does not weaken any environmental protections on any public lands." But Trump made clear he plans to shrink or eliminate some monuments. Speaking after Zinke, Trump slammed his predecessor for using the Antiquities Act so often, saying, "it’s time we ended this abusive practice."

"I've spoken with many state and local leaders… who are gravely concerned about this massive federal land grab, and it's gotten worse and worse and worse," Trump said. "And now we're going to free it up, which is what should have happened in the first place. This should never have happened."

It's far from clear Trump can eliminate monuments designated by a previous president. While Congress can abolish a national monument, the Antiquities Act doesn't explicitly give the president the authority to do so, and no president has ever tried.

But several presidents have reduced the size of national monuments, according to the Congressional Research Service. President John F. Kennedy, for instance, removed nearly 4,000 acres from the Bandelier National Monument in New Mexico.

Pumping groundwater near Mojave Trails

In the California desert, public-lands advocates were dismayed by Trump's order.

David Myers, executive director of the Wildlands Conservancy, said he thinks the Sand to Snow and Mojave Trails national monuments have enough local, bipartisan support that the Trump administration won't target them for elimination. But he's worried about possible carve-outs for mining, energy development and other industrial activities.

"Someone donates to a congressman, and all of a sudden a mining company from Canada, or Mitsubishi from Japan, trumps the American people," Myers said. "The people love these monuments, and they will show up and turn out to protect them."

Some conservationists fear Trump's executive order will be used to help Cadiz Inc., which wants to pump groundwater from a desert aquifer next to Mojave Trails and sell the water to Southern California cities. Frazier Haney, conservation director at Mojave Desert Land Trust, said federal officials could rewrite Obama's 2016 proclamation establishing the monument to make it easier for the groundwater project to go forward.

Obama’s proclamation referred to "the area’s scarce springs and riparian areas" as one of the reasons for designating the Mojave Trails monument, noting that underground aquifers "feed springs and seeps that are important for sensitive ecosystems and wildlife." If that language is scrapped, Haney said, it would remove a potential legal obstacle to Cadiz pumping groundwater just outside the national monument.

Cadiz doesn't think the monument affects its project and hasn't advocated for any changes to the monument designation, spokesperson Courtney Degener said.

"Monuments cannot and do not impact private property or valid existing rights, including Cadiz’s water rights," she said.

Jim Conkle, a Route 66 historian, led the charge to create the Mother Road National Monument, which eventually became Mojave Trails. He leads tours of the historic highway — but it's really the untouched desert surrounding the roads that inspires him.

"Whenever I go into the Mojave Desert, I feel the weight of the world is off of me, and I'm in this gorgeous place that was made and is still the same," Conkle said. "You're actually seeing what the indigenous people of 1,000 years ago saw. That landscape has not changed, and I don’t want it to change."

A Coachella Valley 'gateway' to Sand to Snow

Conservationists spent years working with Sen. Dianne Feinstein, D-California, to create the Sand to Snow and Mojave Trails national monuments, in part to protect those areas from the boom in solar and wind development that started after Obama took office in 2009. But legislation introduced by Feinstein repeatedly failed to gain enough support, as did bills written by Rep. Paul Cook, R-Yucca Valley, which would have established the Sand to Snow monument and offered a lesser level of protection to the Mojave Trails.

With little chance of movement in Congress, Feinstein asked Obama to designate the monuments. He did so in February 2016, emphasizing that the monuments would help fortify the desert against the impacts of climate change by connecting millions of acres of already-protected lands, creating corridors through which at-risk species like bighorn sheep can travel as some areas become less habitable due to rising temperatures.

The Sand to Snow designation was relatively noncontroversial, since most of the monument was already congressionally designated wilderness. Sand to Snow helps link the San Bernardino National Forest, the San Jacinto Mountains and Joshua Tree National Park, connecting a diverse array of ecosystems and protecting a wildlife corridor traversed by mountain lions, bighorn sheep and desert tortoises, among other species. The monument also includes 30 miles of the Pacific Crest National Scenic Trail.

Leaders of Desert Hot Springs, the Coachella Valley's northwestern-most city, see Sand to Snow as a potential economic boon. The City Council passed a resolution last year declaring its intent to be a "gateway community" for the national monument.

"When President Obama signed the Sand to Snow act, it really opened up opportunities for us to capture a portion of those two million visitors to Joshua Tree (National Park) every year, to stop here in Desert Hot Springs and use us a a gateway to Sand to Snow," the city's mayor, Scott Matas, said in an interview Wednesday, after Trump signed his executive order. "It is an important piece of our tourism plan for the future."

Fighting over off-roading, rockhounding at Mojave Trails

Mojave Trails was more controversial. Miners, hunters, off-road vehicle enthusiasts and collectors of rocks and minerals opposed a presidential monument designation, fearing they would be shut out from enjoying the land. They preferred legislation, through which Congress could guarantee their favorite pastimes would continue to be allowed.

During an event hosted by Feinstein at the Whitewater Preserve in late 2015, John Sobel — chief of staff to Rep. Cook, who had his own desert lands legislation — said monuments designated using the Antiquities Act would be "second-rate monuments, because they lack the adequate support of locals and of Congress."

But now that the desert national monuments are in place, even some of those critics say Trump should leave them alone.

Randy Banis, a representative of the California Off-Road Vehicle Association, worked with Feinstein on her legislation. He opposed Obama's designation of the Sand to Snow and Mojave Trails monuments, but he doesn't think Trump should reverse that decision.

"I'm generally not one for going backward. I don't think it’s productive," Banis said.

Banis is working with other stakeholders to make sure the Mojave Trails monument stays open to recreational activity. As chair of the California Desert District Advisory Council — which gives input to the federal Bureau of Land Management — Banis is forming a group to advise BLM specifically on the management of Mojave Trails.

As an off-roader, Banis often explores the Mojave Trails area in his safari-style 1994 Land Rover Defender, driving east from the Cady Mountains toward Needles, along the Colorado River. While he's worried the monument's 1,400 miles of off-highway vehicle roads will be closed, he's optimistic federal officials will take local input into account.

"We can do that with the tools that we have on the table now," he said.

Two dozen monuments threatened by Trump's order

Trump said a main reason for his executive order is to re-examine monuments that were designated without sufficient local input, or over the objections of communities. But in the California desert, that rationale doesn't make much sense, monument supporters say. While Republican politicians and other local stakeholders criticized Obama's executive action, Obama only designated the monuments after six years of extensive public conversation, including three attempts by Feinstein to pass bills in Congress.

Conkle, the Route 66 historian, said it's possible other monuments were rammed through without public input — but not the one he worked so hard to create.

"We worked on it for 18 years, covered all our bases, included everybody we could. Everybody had a chance to come to the table and to be recognized," he said. If the Trump administration tries to revoke the Mojave Trails and Sand to Snow monument designations, he added, "They're going to have a battle on their hands."

The White House said Trump's executive order covered two dozen national monuments larger than 100,000 acres, including several in California. Besides Sand to Snow and Mojave Trails, the Interior Department will review California's Giant Sequoia and Carrizo Plain national monuments, which were established by Clinton, and the Berryessa Snow Mountain National Monument, which was designated by Obama. A spokesperson for Zinke said the San Gabriel Mountains National Monument outside Los Angeles, which Obama designated in 2014, may also be reviewed. Unlike all the other 100,000-acre monuments designated or expanded since 1996, it's managed by the U.S. Forest Service, an agency within the Department of Agriculture, rather than Interior.

The Trump administration reached back to 1996 in order to capture the Grand Staircase-Escalante National Monument in Utah, which Clinton created over strong objections from Utah's congressional representatives. Twenty years later, another monument designation angered Utah lawmakers even more: A few weeks before leaving office, Obama created the Bears Ears National Monument, protecting 1.35 million acres of sacred tribal lands in southeastern Utah. The area is rich with petroglyphs, remnants of ancient dwellings and other archaeological artifacts, but it's been plagued by looting.

Native American tribal leaders and conservationists cheered Obama's decision. But state lawmakers and some rural Utahns cried foul, saying a presidential designation would unduly restrict oil and gas development, recreation and other activities.

Trump's executive order calls for Zinke to bring him a report on national monuments within 120 days, but asks for an interim report on Bears Ears specifically within 45 days.

Outdoor recreation industry fights back

Some of the biggest supporters of Bears Ears and other monuments have been outdoor recreation companies like REI, Patagonia and The North Face, which see public lands as good for business. The Outdoor Industry Association released a report Tuesday estimating outdoor recreation to be a $887-billion business. The Interior Department, meanwhile, has estimated the lands under its management hosted 443 million visitors in 2015, supporting $45 billion in economic output and nearly 400,000 jobs.

A few months ago, the outdoor industry pulled its twice-yearly trade show from Salt Lake City after two decades in Utah, in response to a push by state lawmakers to rescind the Bears Ears designation. In a blog post Tuesday, after news broke of Trump's executive order, REI chief executive Jerry Stritzke vowed to fight for America's public lands.

"We believe there is a compelling case to maintain the integrity of our existing national monuments," he wrote. "Our 16 million members can be assured that we believe — as Teddy Roosevelt said — our public lands should be left stronger and healthier for future generations."

Interior Names Solar ‘Hot Spots’ Out West

Small blue circles indicate sites that are prime zones for solar energy installations; light blue patches are sites for which solar applications could be admitted under a variance process. Yellow zones present limited solar alternatives, and pink areas are excluded from development.

By JOHN M. BRODER
New York Times

After more than two years of study and public comment, the Department of Interior on Tuesday identified 17 sites on 285,000 acres of public lands across six Southwestern states as prime spots for development of solar energy. Agency officials said the government would fast-track applications for large-scale solar energy installations at those sites in the hope of speeding construction of thousands of megawatts of renewable, non-polluting electricity generation.

The agency identified an additional 19 million acres of public lands in California, Nevada, Utah, Colorado, Arizona and New Mexico as potential venues for solar energy projects that could win rapid federal approval.

But officials said they were fencing off more than 78 million acres of public land from solar development because the areas have less solar energy potential, do not have immediate access to transmission lines or pose a threat to important archaeological or cultural sites, endangered species, scarce water resources or other environmental values if developed.

“This is a key milestone in building a sustainable foundation for utility-scale solar energy development and conservation on public lands over the next two decades,” the interior secretary, Ken Salazar, said.

Republican critics have accused the Obama administration of restricting energy projects on public lands and waters, and such charges are a staple of the current political campaign, particularly in Western states and along the Gulf of Mexico.

Administration officials have bent over backward to show their commitment to resource development on lands and waters that the federal government controls. On Monday, the Interior Department announced a 20-million-acre oil and gas lease sale in the western Gulf of Mexico, and the agency has liberally granted permission over the past year for mining and drilling across the West, in the gulf and in Alaska.

On the solar energy front, the Interior Department on Tuesday issued a document known as a final programmatic environmental impact statement covering more than 3,000 pages that spells out the considerations in narrowing the sites for solar development and describes the process for permitting new projects.

The agency has already approved 17 large-scale solar energy projects on public lands that are expected to produce nearly 6,000 megawatts of electricity, enough to power about 1.8 million homes.

The department estimated the resource potential of the newly-identified development zones at 23,700 megawatts, enough to power seven million homes, by 2030.

Solar industry and environmental advocates reacted favorably to the announcement, saying it would mean jobs and renewable power for years to come.

“Renewable energy development on federal lands is essential to reaching our national clean energy goals,” said Arthur L. Haubenstock, vice president for regulatory affairs at Brightsource Energy, a solar technology company.

Helen O’Shea, director of the Natural Resources Defense Council’s western renewable energy project, said she hoped the new plan would help the nation address climate change while protecting wildlife and critical habitat.

Opponents will have 30 days to formally protest the solar plan, after which Mr. Salazar will consider adopting the document through executive action.