Photo: Pi Consti / Flickr
As the final hours of Obama’s presidency draw to a close, one of the many looming questions on both sides of the aisle is whether Trump can unilaterally declassify the more than 30 national monuments — comprising millions of acres of land and sea — that Obama either established or enlarged over the last eight years.
The answer isn’t so simple.
With no existing precedent or formal adjudication on the books, some say “no” and others say “yes.”
U.S. National Park System: National Parks v. National Monuments
The United States National Park System encompasses a wondrous collection of over 400 locations spanning all 50 states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa and Saipan.
Within the National Park System, there are 20 different designations for protected areas; collectively, national parks and national monuments are the most numerous and tend to be the most familiar.
So, what exactly is the difference between a national park and a national monument?
National parks are created by an act of Congress and are typically selected for their unusual geological features, unique ecosystems, natural beauty and recreational opportunities.
National monuments, on the other hand, can be designated by a President in his or her sole discretion. The American Antiquities Act of 1906 — signed into law by Theodore Roosevelt — authorizes executive power to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon” federal lands. Many of our nation’s most beloved national parks were initially protected as national monuments, including the Grand Canyon, Joshua Tree, Death Valley, Zion, Bryce Canyon and Acadia.
With the notable exceptions of Presidents Richard Nixon, Ronald Reagan and George H. W. Bush, every President has availed himself of this power since Theodore Roosevelt first established Wyoming’s Devils Tower in 1906. At the outset of Obama’s presidency, Bill Clinton held the record, having designated 19 national monuments. Theodore Roosevelt and Jimmy Carter closely followed with 17 and 15, respectively.
President Obama’s National Monuments
While President Obama’s environmental record is not without its blemishes — he’s approved offshore fracking in the Gulf and off the coast of California, expedited the permitting process for oil and gas pipelines, and undermined the Endangered Species Act — he FAR outdid his predecessors by establishing 29 new national monuments and expanding 4 others.
- Fort Monroe National Monument (November 1, 2011)
- Fort Ord National Monument (April 20, 2012)
- Chimney Rock National Monument (September 21, 2012)
- César Chávez National Monument (October 8, 2012)
- Charles Young Buffalo Soldiers National Monument (March 25, 2013)
- Río Grande Del Norte National Monument (March 25, 2013)
- San Juan Islands National Monument (March 25, 2013)
- First State National Monument (March 25, 2013)
- Harriet Tubman Underground Railroad National Monument (March 25, 2013)
- Organ Mountains-Desert Peaks National Monument (May 21, 2014)
- Pacific Remote Islands Marine National Monument (enlarged September 25, 2014)
- San Gabriel Mountains National Monument (October 10, 2014)
- Browns Canyon National Monument (February 19, 2015)
- Pullman National Monument (February 19, 2015)
- Honouliuli National Monument (February 24, 2015)
- Waco Mammoth National Monument (July 10, 2015)
- Basin and Range National Monument (July 10, 2015)
- Berryessa Snow Mountain National Monument (July 10, 2015)
- Castle Mountains National Monument (February 12, 2016)
- Sand to Snow National Monument (February 12, 2016)
- Mojave Trails National Monument (February 12, 2016)
- Belmont-Paul Women’s Equality National Monument (April 12, 2016)
- Stonewall National Monument (June 24, 2016)
- Katahdin Woods and Waters National Monument (August 24, 2016)
- Papahānaumokuākea Marine National Monument (enlarged August 26, 2016)
- Northeast Canyons and Seamounts Marine National Monument (September 15, 2016)
- Bears Ears National Monument (December 28, 2016)
- Gold Butte National Monument (December 28, 2016)
- Birmingham Civil Rights National Monument (January 12, 2017)
- Freedom Riders National Monument (January 12, 2017)
- Reconstruction Era National Monument (January 12, 2017)
- California Coastal National Monument (enlarged January 12, 2017 and March 11, 2014)
- Cascade-Siskiyou National Monument (enlarged January 12, 2017)
Depending on your outlook, Obama either made damn good use of the Antiquities Act or he severely abused it.
Controversial Designations in 2016
The friction is particularly high with respect to three national monuments that Obama established in the last six months of 2016: Maine’s Katahdin Woods and Waters National Monument (August 24), Utah’s Bears Ears National Monument (December 28) and Nevada’s Gold Butte National Monument (December 28).
In broad brush strokes, the debate involves conservationists and Indian tribes pitted against fossil fuel and logging companies (and the politicians in their pockets), as well as local groups who argue the designations negatively impact economic opportunities in their communities.
To highlight underlying tensions, Gold Butte was the site where cattle rancher Cliven Bundy — father of militia leader Ammon Bundy, known for his 2016 armed occupation of the Malheur National Wildlife Refuge in Oregon — directed an armed standoff with government officials in 2014.
It’s all about who possesses the rights to use these lands and waters as they see fit.
What Can Trump Do About It?
Given the Trump administration’s predilection for the ecologically disastrous cocktail of fossil fuel infrastructure, land development and corporate interests — in addition to its apparent plan to undermine much of Obama’s legacy — it’s not a stretch to assume that steps will be taken to nullify our 44th President’s unparalleled reliance on the Antiquities Act.
But how far can Trump go?
Assuming that the 115th Congress doesn’t first render the question moot by repealing Obama’s designations on its own — a feasible outcome given current Republican leadership — there is no precedent supporting a presidential revocation of a predecessor’s national monument designation.
It simply has never been done. And U.S. Attorney General Homer Cummings opined in 1938 that it could never be done.
But the plain language of the Antiquities Act neither expressly supports nor negates the power to repeal a national monument, and Cummings’ opinion was never formally challenged in a court of law — and so no binding precedent exists either way.
And Trump is not exactly one to follow protocol or convention.
Whether BuzzFeed’s report that “high level officials in the Trump administration” were “open to suggestions Trump could roll back Obama’s Bears Ears designation” will translate into official action remains to be seen.
But you can bet that conservation advocates will not take a fight lying down.
As Randi Spivak, Public Lands Program Director at the Center for Biological Diversity, said, “If the president tries to undo any national monument done by any previous president, we will see his administration in court.”
And given the issue’s high profile and hotly contested nature, a lawsuit would likely wind all the way up to the Supreme Court in a protracted process that could take years — and, quite possibly, extend past the final hours of Trump’s presidency.