Rep. Rob Bishop, R-Utah, head of the House Committee on Natural Resources, is getting push-back from conservation groups and some in the New Mexico congressional delegation for his suggestion that Trump could take back monuments preserving public lands from California to Maine.
Obama designated the Rio Grande del Norte National Monument in Taos County and the Organ Mountains-Desert Peaks National Monument in southern New Mexico.
Doing away with national monuments created by presidential proclamation under the 110-year-old Antiquities Act has never been done, but also has never been legally tested. The act was passed in 1906 during the Republican administration of President Theodore Roosevelt, an early leader in the conservation movement.
“If any administration thinks they’re going to start divesting us of a hundred-year history of lands that belong to every American, they’re going to have to do it over my dead body,” said Sen. Martin Heinrich.
Heinrich was joined in his condemnation of Bishop’s idea by New Mexico Democrats U.S. Sen. Tom Udall and U.S. Rep. Ben Ray Luján.
“Extremists in Congress may be urging President-elect Trump to take radical and unprecedented actions against our public lands, but I will fight any such actions every step of the way. I urge Western communities to join me in informing Mr. Trump about the value these lands hold for New Mexicans and all Americans,” Udall told the Journal in a statement.
“No president has ever overturned a previous president’s decision to designate a national monument and I sincerely hope that the president-elect respects this precedent so that this treasure of northern New Mexico will be protected and preserved for future generations,” said Luján, referring to the Rio Grande del Norte monument.
But U.S. Rep. Steve Pearce, New Mexico’s only Republican member of Congress, pointed out this week that he had introduced legislation to protect 60,000 acres of the Organ Mountains, as opposed to the 496,000 acres Obama set aside.
“The Antiquities Act requires that a President designate the smallest possible footprint in order to achieve the desired environmental preservation. American’s have witnessed the Obama Administration disregard that part of the law,” Pearce said in a written statement to the Journal.
He called on Trump to review the Organ Mountains designation and others around the country, reducing their footprint “to an acreage supported by existing federal law.” He added, “Additionally, Congress should work with President Trump in the years to come on changing the designation process – so that no future President may unilaterally restrict lands from the people. These decisions must be made in Congress.”
Bishop has said on his website that “communities across the West live in constant fear of unilateral monument declarations.”
Conservation by pen
During the just-concluded presidential campaign, Trump raised a red flag for conservation groups after Obama used a proclamation to designate 87,500 acres of donated Maine woodlands the Katahdin Woods and Waters National Monument.
“This decision, done at the stroke of a pen without the support of the local community, undermines the people that live and work right here in Maine,” Trump said in October.
Obama used his pen to designate the two new monuments in New Mexico on land that was already under the federal Bureau of Land Management’s umbrella. The Rio Grande del Norte Monument’s creation in 2013 was supported by a wide range of business, environmental and community groups as a boon for Taos-area tourism, while the Organ Mountains designation was more controversial.
Conservation groups now are urging Obama to make a last-minute national monument proclamation of the Bears Ears area of Utah, which Bishop opposes.
Using the Antiquities Act, Obama has burnished his conservation credentials with the establishment of a total of 28 national monuments across the country. There were 19 designated during the Clinton administration. President George W. Bush created two.
Asked if Trump has authority to rescind monuments, a Department of Interior spokesperson responded in a statement, “We’re not going to speculate on what any new Administration will or won’t do. For over 100 years, both Republican and Democratic presidents have designated monuments to conserve America’s natural, historical and cultural heritage.”
“No president has ever rescinded a national monument,” said Kristen Brengel, vice president of government affairs for the Washington, D.C.-based National Parks Conservation Association. “There is no precedent.”
Bishop and his Utah supporters think it can be done and they especially dislike a Utah monument designated by President Bill Clinton two decades ago.
“Just because somebody who created mistakes like the Grand Staircase-Escalante Monument says you can’t do it, or you shouldn’t do it, or it’s questionable – bull crap,” Bishop recently told E&E News, which tracks environmental issues.
“It’s never been done before and that’s why people are saying you can’t do it … of course you can do it. It’s always been implied.”
John Leshy, a former chief attorney for the Department of Interior, said the legally untested Antiquities Act has become a partisan issue.
“The Republican platform calls for eviscerating the Antiquities Act,” Leshy, now professor of law emeritus at the University of California’s Hastings College of the Law, said by email. The GOP platform approved at this past summer’s national convention calls for a requirement that Congress and state legislatures sign off on any new national monuments.
Because no president has tried to take back a national monument, “there’s no track record on this,” Leshy said. He said there’s a U.S. Attorney General opinion from the 1930s that examined the issue “and concluded that a president cannot undo a monument.”
“That’s not been litigated because no president has ever tried,” Leshy added. “Perhaps Trump can be the first and we’d have a test case.
“In a very few instances, presidents have shrunk the boundaries of monuments proclaimed by their predecessors,” he said. “The extent of that power has not been litigated either.” Leshy said that much more often “Congress or subsequent presidents expand previous presidents’ proclamations, or convert the monument into a (national) park.”
Wilderness Alliance concern
“We are certainly deeply concerned about the Trump administration’s posture on conservation issues,” said Mark Allison, executive director of the Albuquerque-based New Mexico Wilderness Alliance.
Allison thinks there is a distinction between executive actions Trump might take to reverse Obama’s actions on immigration issues and what Obama did under the 1906 Antiquities Act.
“Our interpretation is he (Trump) would be unable to completely rescind a national monument under the Antiquities Act. He may have the authority to modify boundaries or acres, but we think this is extremely unlikely,” Allison said in a phone interview.
“From a political standpoint, these national monuments have widespread support,” Allison said of the two recently created New Mexico monuments. “It is inconceivable for him (Trump) to rescind them.”
Udall’s statement noted a broad coalition that supported the Taos-area monument. “The Rio Grande del Norte National Monument also supports cultural traditions like hunting, grazing and irrigation – and it has been embraced by the local community,” said Udall. Any reversal “would be a massive betrayal of the public interest, putting many of our most precious natural landscapes at risk, and such an action would face strong legal challenge,” he said.
Rio Grande del Norte extends from Pilar along the Rio Grande south of Taos north to the New Mexico-Colorado border and includes over 242,000 acres of volcanic cones and the 800-foot deep Rio Grande Gorge.
The 496,000-acre Organ Mountains monument is home to ancient petroglyphs and lava flows, rare plants and animals, and vast recreational and hunting areas. Ranchers said the monument designation could complicate the already strict rules governing use of federal lands and make ranching tougher.