The Trump administration is defending an underwater national monument off the coast of New England designated by former President Barack Obama in 2016, but not because it likes what Obama created.
After all, President Trump last year issued a rollback of the Bears Ears and Grand Staircase-Escalante national monuments in Utah, and his administration has argued that Obama and other recent presidents abused their authority in creating or expanding national monuments on large swaths of public land.
Trump wants fewer and smaller monuments, and Interior Secretary Ryan Zinke has recommended the president shrink the Northeast Canyons and Seamounts Marine National Monument that the administration is now backing in court.
So, what gives?
It’s all about presidential power.
“If anything, I would not be surprised if we see President Trump issue an executive order down the line eliminating or diminishing this very same marine monument,” said Justin Pidot, a law professor at the University of Denver who served as the deputy solicitor for land resources at the Interior Department during the Obama administration.
“I definitely wouldn’t read this as the president saying, ‘It turns out I love this marine monument.’ This is purely about giving the president as much authority and broader power as he can have.”
The Department of Justice declined to tell the Washington Examiner why it supported Obama in the marine monument case, citing ongoing litigation. But the Justice Department’s legal filing in the case makes clear the motivation.
The Trump administration Tuesday asked a federal judge to dismiss a lawsuit from fishermen trying to eliminate the Northeast Canyons and Seamounts Marine National Monument, which protects 5,000 square miles of deep sea corals and marine life. The fishermen say the monument cuts off too much access to commercial fishing.
In a filing in the U.S. District Court for the District of Columbia this week, the Justice Department said the federal court system has no authority to decide whether Obama acted lawfully when he created the marine monument in 2016.
“This court cannot review how the president exercised the discretion that Congress granted him to designate and define national monuments in the Antiquities Act,” the Justice Department wrote in a motion asking the court to dismiss the lawsuit. “The president properly exercised the broad discretion afforded to him in the Antiquities Act to designate a national monument fully in line with the purposes of this statute.”
The 1906 Antiquities Act gives the president unilateral power to declare national monuments on federal land, but it does not explicitly say whether a president can overturn or change a monument designation, and the concept has not been tested in court.
Until now.
Environmentalists and tribal groups sued Trump for shrinking the Bears Ears and Grand Staircase-Escalante national monuments, arguing the Antiquities Act gives a president the power to create monuments, not alter them.
Those cases are in the early stages in the court process, and there has been no date set for arguments.
By asserting presidential power in the marine monument case, the Trump administration is likely setting the stage for the argument it will make to defend the president’s authority in shrinking the Utah monuments.
“The administration has an interest in arguing that the president has unbridled discretion to create national monuments under the Antiquities Act because they are going to have to argue that power extends to the power to revoke or diminish a monument that has already been established,” said Pidot, who helped Obama create Bears Ears and is representing some of the tribes in their challenge to Trump’s rollback of the monument.
“The legal issues are completely different because the Antiquities Act expressly authorizes creation of national monuments but does not authorize revocation of diminishment, but I assume they will try to connect the two.
“If they instead had suggested the president had narrow authority in the marine monument case, and that Obama creating it was outside the bounds, that would make the Trump administration’s life harder in the Utah cases,” Pidot added. “The plaintiffs in those cases would pick that up and use it against them.”
Other legal experts argue the Trump administration’s filing in support of presidential power in the marine monument case won’t help the president in the Utah cases because the Antiquities Act does not address undoing or shrinking monuments.
“The Antiquities Act never mentions shrinking monuments,” said John Ruple, a law professor at the University of Utah focused on public lands. “A court can’t get to how to treat President Trump’s reasons for shrinking monuments created by his predecessors unless that court first finds that Congress granted the president the power to shrink those monuments. That requires a court to read into a statute language that simply isn’t there.”
John Yoo, a former top Justice Department official in the President George W. Bush administration, said the Trump administration is looking to confirm the power of the presidency in making monument decisions so it can also argue that the only way to stop a presidential designation is for successors to reverse that decision, not the courts.
“The Trump administration is protecting the long-term interests of the presidency, which seeks to avoid judicial intrusion into the executive’s designation of monuments,” said Yoo, who is now a law professor at the University of California at Berkeley.
But Matt Lee-Ashley, a senior fellow at the Center for American Progress and former Interior Department official in the Obama administration, says the Trump administration’s filing in the marine monument case will harm its standing in the Utah cases.
He contends the Trump administration is undermining its view that Obama and other previous presidents overstepped their authority in creating national monuments by claiming in the marine case courts cannot question the extent of that power.
“DOJ’s filing conflicts with and undercuts Secretary Zinke’s anti-monument recommendations to President Trump,” Ashley said. “DOJ says that President Obama acted appropriately to protect the Northeast Canyons and Seamounts, and describes in detail the resources that were rightly protected. DOJ’s filing further confirms that Zinke’s recommendations were not only deeply unpopular and factually inaccurate, but legally flawed.”
