Last month in Denver, Myron Ebell, who led President Trump’s Environmental Protection Agency transition team, cautioned westerners hoping for reversal of the dictatorial manner in which federal lands have been managed lately. “[President Trump] doesn’t owe the West a lot,” argued Ebell. “Trump made a lot of promises. … But on federal lands, he did not.”
Westerners need not have worried. Yesterday, neither the dearth of western electoral votes nor a deficiency of electioneering vows mattered as Trump issued an executive order subjecting more than a decade of national monument decrees to careful review by Interior Secretary Ryan Zinke to determine if they complied with the Antiquities Act of 1906.
Trump’s courageous action overcame blood-curdling screams by radical environmental groups across the country and their sycophantic allies. It contrasts sharply with President George W. Bush’s refusal to vacate President Bill Clinton’s especially egregious designation of the 1.9 million acre Escalante-Grand Staircase National Monument in Utah. Worse yet, Bush had even attacked the decree in his 2000 campaign. Yet his Justice Department defended the designation anyway. Not to worry, Trump also put that edict under the microscope.
Trump’s order asks a basic question: Did the designations comply with federal law? Specifically, Zinke must consider:
- The requirements and original objectives of the Antiquities Act, including its requirement that reservations of land not exceed “the smallest area compatible with the proper care and management of the objects to be protected”;
- Whether designated lands are appropriately classified under the Antiquities Act as “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest.”
After all, the Antiquities Act of 1906 was never intended for the purposes to which it was put by Clinton and Obama, especially in Utah and Maine. Instead, Congress sought to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,” what the U.S. House of Representatives report called “interesting relics [‘ruins’] of prehistoric times” that are “scattered throughout the [American] Southwest [on] public lands.”
Initially, designations were limited to “320 to 640” acres, but finally provided for “the smallest area compatible with the proper care and management of the objects to be protected.” Federal officials noted, as early as 1911, that the Antiquities Act does “not specify scenery, nor remotely refer to scenery as a possible raison d’etre for a public reservation.”
Fortunately, Trump’s 120-day review goes further reminiscent of Sagebrush Rebel Ronald Reagan and his commitment to federalism, the recognition that the states created the federal government not the other way around. Trump ordered Zinke to address the “concerns of State, tribal, and local governments affected by a [monument] designation, including the economic development and fiscal condition of affected States, tribes, and localities.” How refreshing!
On February 1, I urged President Trump to take this action. I argued that he has unquestioned authority to vacate the actions of his predecessors. Just as no Congress can bind a future one, no president, with a unilateral decree, can claim to rule forever. I predicted that any revocation will be fought aggressively by radical environmental groups and will require the solicitor general to defend Trump’s actions before the Supreme Court. Not only is it the right thing to do, but he will prevail.
As we await the results of Zinke’s review, there is one remaining matter for Trump, as I argued in February. He should ask Congress to repeal the Antiquities Act to prevent lawlessness by any future president who views rural Americans with disdain.
William Perry Pendley is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.”
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