You may not realize it, but you are a land baron: as a citizen of the United States, you own roughly 640 million acres of public land. We own all of that land together—nearly two acres per person—and we elect members of Congress to make decisions on our behalf about how best to manage it. Congress, in turn, has established various federal agencies that then hire staff to care for our land. I don’t know about you, but I just don’t have the time or money to keep an eye on all of that land we own together.
Under the Constitution, Congress has the ultimate authority over public lands. It also gives Congress the authority to delegate some duties to the President and federal agencies to “execute” our will. The President and the agencies have to follow Congress’ direction—just as any employee you might hire to manage your land would. Telling your employees that they can chop down some trees, but that they can’t dig up your garden means that they can’t just decide to dig up your garden. The same principle holds for the President and federal employees: they have to follow the directions Congress has given them.
Despite that simple Constitutional reality, President Trump ordered Interior Secretary Ryan Zinke to review 27 National Monuments designated by previous Presidents to make recommendations as to whether those National Monuments should be revoked or modified in some way.
Seven of those National Monuments are in California: Mojave Trails, Sand to Snow (removed last week), San Gabriel Mountains, Berryessa Snow Mountain, Cascade Siskiyou, Carizzo Plain, and Giant Sequoia.
Every one of them was lawfully designated or expanded by a previous President under the Antiquities Act of 1906 (where Congress gave the President the authority to proclaim National Monuments to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest”) and the Federal Land Policy Management Act (FLPMA) of 1976 (where Congress explicitly stated that the executive branch could not “modify or revoke any withdrawal creating national monuments.”) Several previous Presidents have modified some National Monument boundaries, but those actions were never tested in court and occurred before Congress expressed in FLPMA that such actions are only for Congress to make.
These are all lands that were already federally owned when they became National Monuments. Without such protection, however, they were generally subject to private claims that could imperil their “objects of historic or scientific interest” and therefore harm the interests of their owners—you and me. We may disagree about how our lands should best be managed, but Congress has stated that the President has discretion only to protect those lands, while Congress may continue to debate their future. Congress has never given the President or Secretary any authority to undo those protections.
Instead, Congress has kept that authority for itself in accordance with the Constitution. Many local communities have initially opposed National Monument designations, but often local support grows over time, and frequently Congress has come to recognize the wisdom and value in protected status by expanding Monuments. Congress can modify the Antiquities Act and it can even revoke a monument status, but the president cannot do that on his own.
These lands are owned by all of us, so it is for all of Congress to decide their fate. We celebrated the 100th anniversary of the National Park System last year and it remains “America’s best idea.” Our public lands truly are a legacy for all Americans, because we all own them together. Local communities should have a say in how they are managed, but our federal land managers are ultimately responsible to all of us. Both the National Parks and the “objects of historic or scientific interest” in National Monuments are a legacy for the children and grandchildren of all Americans—whether in New York, Mississippi, Ohio, or California.
We remain a nation of laws, not men. And our laws are clear: the President has authority to proclaim National Monuments, but only Congress may modify or revoke those designations. We hired President Trump and Secretary Zinke to manage our public lands. So they now need to respect the Constitution’s limitations and leave our National Monuments intact.
(I published this op-ed in the San Gabriel Valley Tribune today (http://www.sgvtribune.com/opinion/20170820/trump-should-know-only-congress-can-alter-national-monument-designations-guest-commentary) , and it will be republished in several sister papers this week. I think it is critical to share it broadly now as Interior Secretary Zinke is scheduled to make recommendations to President Trump on the fate of many national monuments later this week. I have worked for and with federal land and resource management agencies and taught public land and natural resources law. I am confident that Presidential attempts to rescind or modify the boundaries of existing monuments is in direct conflict with existing law and will be rejected by the courts.)