March 22nd, 2018


How Does a First-Year National Monument Become an Institution? It's the Obama Touch

Debra J. Saunders

By Debra J. Saunders

Published Dec. 11, 2017

How Does a First-Year National Monument Become an Institution? It's the Obama Touch

The New York Times' graphic said it all. On one side, the map displayed the "original boundaries" for Bears Ears National Monument with 1.35 million acres in green. On the other side was the drastically scaled-down monument with less green representing 201,876 acres, thanks to a recent proclamation by President Donald Trump reducing the national monument.

The Times stipulated in smaller print that the "original" boundaries were set in December 2016 by President Barack Obama. The date actually was Dec. 28. That is, the "original" boundaries were less than a year old.

Activists who supported the Obama proclamation also have referred to the "original" lines with little or no reference to the inception date. And while it is accurate to use the term because Obama did designate the Bears Ears National Monument boundaries, when the word "original" is attached to land, readers instinctively think of something as really old. "Original" is not a term for something in its infancy.

Has the news cycle sped up so totally that news organizations treat a first-year project as an institution?

In April, Trump directed Secretary of the Interior Ryan Zinke to review the designation of 22 land national monuments. This month Zinke recommended revising the boundaries of four monuments, including Nevada's Gold Butte National Monument, which also was created during Obama's last month in office.

The Zinke report did not specify how much land should be cut from Gold Butte, but its language on historic water rights suggests some 24 square miles would be cut from the roughly 460-square-mile monument.

Those opposed to the Zinke review overall argued passionately that their beloved monuments deserved protection based on their value as historic landmarks or prehistoric structures or for their scientific interest. But also, underlying their arguments was the sentiment that once the government creates an entity, it has a right to exist in perpetuity.

There's a legal argument to that effect. A letter signed by 121 law professors cites the 1938 opinion of Attorney General Homer Cummings that said the Antiquities Act of 1906 does not authorize presidents to abolish national monuments "after they have been established."

"The Act vests the President with the power to create national monuments but does not authorize subsequent modification," the 121 law professors wrote.

Todd Gaziano, executive director of the pro-property rights Pacific Legal Foundation, doesn't buy that argument. "Now they're saying that the same presidential pen that created (monuments) can't be used in someone else's hand," he said.

Be it noted, presidents have downsized national monuments before. President Dwight Eisenhower cut the Great Sand Dunes National Monument and President Harry Truman halved the Santa Rosa Island National Monument.

Zinke presented his decisions as representative of voter opinion. Meetings held before Obama signed the monument proclamations, his final report noted, often were packed with "advocates organized by non-governmental organizations (NGOs) to promote monument designations." Ditto the public comment process.

A Salt Lake Tribune poll did find that 51 percent of Utahans deemed Bears Ears to be too big. The same poll found that a majority of Utahans opposed breaking up Grand Staircase-Escalante National Monument, which Zinke has proposed reducing by about 46 percent. All of Utah's elected officials in Washington supported Zinke's recommendations.

In Nevada, Democrats generally opposed Zinke's Gold Butte recommendation, while Republicans supported the move.

In 1906, when President Theodore Roosevelt declared Devils Tower in Wyoming to be the first national monument, he set aside 1,153 acres.

During a recent conference call, Zinke urged reporters to read the Antiquities Act — and its mandate for monuments to be "confined to the smallest area compatible with proper care and management." That original thinking is gone. Since 1996, presidents have created 26 national monuments over 100,000 acres.

Zinke recommended that Trump work with Congress — a tack that would avoid having the courts decide if a president's "original" word on monuments is final.

"Constituencies emerge for every government program," Gaziano observed, and they will fight change.

There's another saying, popular in the Obama White House: Elections have consequences.