President Barack Obama is using his executive power to issue a broad swath of environmental protections during his last weeks in office, guarding himself against a successor who has vowed to roll back parts of that agenda.
As part of this effort, Obama has made historic use of a 110-year-old law signed by Theodore Roosevelt that gives a president unilateral authority to designate national monuments on land already owned by the federal government.
Some Republicans in Congress have long accused Obama of abusing the law—the 1906 Antiquities Act.
“What was created 110 years ago for the purpose of giving the president power to protect some of our natural resources and archeological treasures from imminent destruction has lost its meaning over time,” said Sen. Mike Lee, R-Utah, in an interview with The Daily Signal. “The envelope has been pushed to the point where there’s nothing left of it.”
Worried that Obama will aggressively act on his way out the door, opponents like Lee are now gearing up for a protracted fight to amend or repeal the law, and are even vowing to work with the incoming Donald Trump administration to overturn monuments already named by Obama.
They are paying special attention to Obama’s next rumored target for a national monument designation, a site known as Bears Ears in southeastern Utah, a 1.9 million-acre retreat of mesas and canyons revered by Native Americans who live by it.
“It will kick off a huge flurry of legislative activity should the president take this unfortunate step,” said Lee, who notes he and nearly every elected state and federal official in Utah opposes Obama acting alone to make Bears Ears a national monument. “He [Obama] doesn’t want to be the guy who tarnishes his legacy of reaching out to populations who have been marginalized in the past [Native Americans]—in many instances by the government itself—by further marginalizing them. If he does act, he is asking for a strong response, and this is what that will bring.”
Battle for Bears Ears
Lee and other opponents have been bracing for Obama to name Bears Ears a national monument, and this week he and other Utah political leaders and several state and local elected officials rallied at the Capitol in Salt Lake City, demanding that the president not act.
Five tribal nations have joined to ask Obama to designate Bears Ears a national monument, arguing that this is the way to best protect the site from looting, mining, and drilling.
The site is not reservation land — it is owned by the federal government and managed by the Bureau of Land Management, U.S. Forest Service, and National Park Service. But local Native Americans depend on it for sustenance, religious activity, and cultural tradition.
The tribal coalition of Navajos, Zunis, Hopis, Utes, and Ute Mountain Utes is proposing to jointly manage the land with the government.
Elected officials who serve the state say the Obama administration’s consideration of Bears Ears as a national monument shares characteristics with the president’s recent use of the Antiquities Act in that there is significant local opposition to unilateral action.
They argue that the coalition of tribes supporting the monument do not reflect the local sentiment of Native Americans, because the group is supported by major conservation groups and nature advocates.
Powerful Republicans in Congress representing the area—including Reps. Rob Bishop, who chairs the House Natural Resources Committee, and Jason Chaffetz, who chairs the House Oversight and Government Reform Committee—have introduced legislation that would protect a portion of Bears Ears while opening other parts of the state to development.
The massive public lands bill—called the Utah Public Lands Initiative—includes a provision that would conserve less of Bears Ears—1.4 million acres instead of 1.9 million acres—and also would allow energy development in certain areas.
The measure, which has not received a floor vote in the House, is opposed by environmental groups and the tribal coalition, who say it does not significantly protect natural resources.
“At the end of the day, we stayed at the table as long as anybody working with Congress and county commissioners trying to come up with a protection mechanism for this landscape,” said Barb Pahl, the senior vice president of field services at the National Trust for Historic Preservation, in an interview with The Daily Signal. “There’s an agreement that we need to protect it, but Congress hasn’t acted. We don’t think their bill provides the protection this amazing region deserves, so it’s time for the president to act.”
‘Right the Wrongs’
Naming a national monument through the Antiquities Act has historically received bipartisan support.
Eight Democratic presidents and eight Republicans have used the law in some form, according to the Wilderness Society, designating a combined 152 national monuments.
Yet Bishop and Lee argue some of Obama’s designations have been overly ambitious, and influenced by persistent advocacy from outside groups.
Only Franklin D. Roosevelt has used the Antiquities Act authority more often.
“There are some special-interest groups that think they are empowered because of this act,” Bishop told The Daily Signal in an interview. “That is why the Antiquities Act needs to be reformed.”
If Obama makes Bears Ears a national monument, Bishop says he can use several tools to retaliate. He says he will “immediately” draft legislation to rescind the monument designation, reintroduce the Utah Public Lands Initiative, and aim to block funding through the appropriations process.
All of those moves would likely struggle to advance in a divided Congress, Bishop acknowledges.
To guard against that possibility, Bishop told The Daily Signal that he’s personally lobbied the Trump administration for the president-elect to act alone to overturn Obama’s potential monument designation of Bears Ears.
“If Obama and [Bill] Clinton can abuse this act so badly, I would tell Trump to give himself the ability to change that and right the wrongs that have been done,” Bishop said.
A president has never before rescinded a previous monument designation, although in a few instances, presidents have shrunk the boundaries of a previous president’s proclamations.
The Antiquities Act does not explicitly say whether a president can overturn or change a monument designation, and the concept has not been tested in court.
Bishop and Lee are confident such an action would pass legal muster.
“We are very confident that a subsequent president could at the minimum redraw the boundaries of a previously designated monument,” Lee said. “There is also a thought that what one president can create, another president can extinguish under the Antiquities Act.”
Pahl of the National Trust for Historic Preservation counters that politicians would be making a mistake by upending more than a hundred years of tradition.
“Some of our most beloved national park units and places began life as national monuments designated under the Antiquities Act,” said Pahl, who referenced the Grand Canyon as an example. “Maybe at the moment some of these decisions have seemed like mistakes, but if you look over the course of time, the American people are grateful for these protections, and to all of a sudden pull the plug from them would be wildly unpopular.”
Bishop says his resistance is about process, not substance, and that there are more holistic ways to protect vulnerable federal land.
“We will do everything that has to be done to make sure a monument at Bears Ears is not done through the Antiquities Act, but through legislation, so the people have a say on what they want to do,” he said.