On April 26, 2017, President Trump issued his “Presidential Executive Order (13792) on the Review of Designations under the Antiquities Act,” providing that his secretary of the interior “shall conduct a review of all Presidential designations or expansions of designations under the Antiquities Act made since January 1, 1996.” The review must include monuments that cover over 100,000 acres, either when first designated or after subsequent expansion, as well as those where “the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.”
In so doing, the secretary must determine if the designations or expansions were “in accordance with the requirements and original objectives of the Antiquities Act,” which are set out in President Trump’s order. He was wise to do so, given the degree to which the law was abused by President Carter, but even more egregiously by President Clinton, and worst of all, by President Obama.
However, Secretary of the Interior Ryan Zinke went off the map in responding to President Trump’s executive order to review and make recommendations regarding the legality of two decades of national-monument decrees.
Instead of doing as asked, Secretary Zinke recommended decreasing the size of only four of the most blatantly illegal national monuments while leaving the boundaries of all the others standing with mollycoddle language, which will soon get stricken by environmentalists. Worse, he asked that the president do as Clinton and Obama did before him: that is, designate as national monuments federal lands that do not qualify under the Antiquities Act, including, in a surprisingly questionable case of special pleading, one in his home state of Montana. If President Trump does not heed his own tendency to fight and not Zinke’s lack of courage, the matter will be up to the entity entrusted by the Constitution with management of federal lands: Congress. That is as it should be, but whether Congress is up to the task is doubtful, given not just the past nine months but the last 107 years.
His undated report to President Trump was leaked to the Washington Post, which published on it on September 18. To his credit, he acknowledges that past administrations played fast and loose with the law. A sample of his findings:
• “Objects are not consistently and clearly defined,” including “geographic areas, ‘view sheds,’ and ‘ecosystems.’”
• “Boundaries mirrored the previously proposed legislative boundaries,” which had been rejected by Congress, “that were not developed with the Act initially in mind.”
• “Traditional uses of the land such as grazing, timber production, mining, fishing, hunting, recreation, and others are unnecessarily restricted by designating geographic landscape areas as objects of historic or scientific interests”
• “Certain monuments were designated to prevent economic activity such as grazing, mining, and timber production rather than to protect specific objects.”
Notwithstanding this list of violations, Secretary Zinke failed to recommend that President Trump vacate any of them. That President Trump has the authority to do so is without question. Just as no Congress can bind a future one, no president through a unilateral decree can claim to rule forever. That it will be fought aggressively by environmentalists means only that the solicitor general must defend the revocations before the Supreme Court of the United States. He should; it is the right thing to do. It will restore the rule of law.