Monument plan may be lose-win
Trump’s push to change sites’ status may fail, but he earns points trying
WASHINGTON — Interior Secretary Ryan Zinke tangled with protesters, weaved through media hives and trotted on horseback across a Utah moonscape last week supporting President Trump’s executive order targeting national monuments.
It’s a directive that may prove legally tenuous but is nonetheless creating rich political theater for the White House.
Trump struggled during the campaign in deeply Republican Utah, particularly with its politically potent landowner rights movement. But now the Queens-born president is polishing his bona fides with that crowd by dispatching a rugged Cabinet secretary on a quest that is rankling
environmentalists and Native American tribes.
Over four days ending Wednesday, Zinke surveyed two hotly contested monuments: the 1.35-million-acre Bears Ears, which President Obama established at the behest of tribes and conservationists in the final weeks of his administration, and the 1.9-million-acre Grand Staircase-Escalante, which has riled developers and energy companies since President Clinton created it in 1996.
In the hardscrabble communities nearby, these monuments are often derided as a “betrayal” that deprives them of potential jobs from energy extraction and other uses. Utah Sen. Orrin G. Hatch invoked the word again recently on the Senate floor while railing against the Bears Ears designation.
The administration’s campaign against national monument designations was launched in Utah by design. The state is a hotbed of resistance to federal control of land. It has even passed a law calling on the federal government to cede control of most of its vast holdings to the state.
“They are trying to work with a favorable audience,” said Rep. Raul M. Grijalva of Arizona, the ranking Democrat on the House Natural Resources Committee. “Once they leave the confines of Utah and start looking at all those other monuments, the politics dramatically changes.”
Attorneys general in New Mexico and Washington state warned Zinke in recent days that he had no authority to diminish their monuments, and California would not hesitate to engage in a fight should Zinke move on lands within its borders.
Even in Utah, polls show the public is divided on whether the Bears Ears designation should be rescinded. But the state’s political leadership is largely united, and Zinke is getting his fill of “attaboys” on this trip.
“We now have an opportunity to discuss and deliberate like we didn’t even have during the Bush administration,” said Ken Ivory, a Utah legislator who is leading a multistate federal land push that would go much further than Trump’s executive order. Ivory’s crusade, which has a number of allies in Congress, seeks to expand nationally the Utah approach of pushing the federal government to transfer its land to state control.
It’s a sensitive political issue for Trump and Zinke, who are aligned with a large coalition of hunters, anglers and outdoor outfitters anxious about what states would do with the federal land. Both men consider themselves outdoorsmen and have made assurances that the administration will not relinquish federal control of the millions of acres at issue.
But Ivory is nonetheless encouraged by the move against the monuments. “This will continue the discussion,” he said.
The protected lands Zinke came to survey are at the core of Trump’s order for a review of all monuments created since 1996 that are larger than 100,000 acres, which is expected to end with Zinke suggesting that both areas either get stripped of the monument designation altogether or be downsized substantially. Zinke is in a race to review about two dozen monuments, including six in California, before producing two lists of recommendations for elimination or rollback. He will present the first list in mid-June.
There is ample evidence the exercise could go sideways, as some of Trump’s other executive orders have. Trump’s ban on visitors from six predominantly Muslim nations and his bid to punish so-called sanctuary cities are both unraveling in court. The executive order Trump said would force builders of the Keystone XL oil pipeline to use only American steel actually won’t.
“The review of these monuments is predicated on the idea that the president has this authority that he doesn’t have,” said Kate Kelly, who was an advisor to Obama-era Interior Secretary Sally Jewell. “There is no legal basis for it.”
The last time a president moved to get rid of a monument on his own authority was in 1938, when Franklin D. Roosevelt sought to jettison the Castle Pinckney National Monument in South Carolina. His attorney general looked into options at the time and reported back that the president couldn’t do that. It would take an act of Congress, which ultimately authorized the federal government to offload the property in the 1950s. The president’s authority to undo monument designations, environmentalists argue, has only shrunk since FDR’s administration, after Congress passed laws solidifying the federal protection.
Attorneys affiliated with some of the conservative think tanks influential in guiding Trump’s agenda argue that FDR’s administration got it all wrong. They say that not only does the president have explicit authority to scotch monuments, but that many of the monuments created under the century-old Antiquities Act were done so illegally. The act, their argument goes, was never intended to preserve sprawling land masses the size of Delaware.
By this line of reasoning, even President Teddy Roosevelt was out of bounds when he designated the Grand Canyon a national monument. (It has since become a national park, and thus untouchable by Trump’s executive order.)
“I think the president is in a strong position,” said Todd Gaziano, an attorney at the Sacramento-based Pacific Legal Foundation, a conservative advocacy group.
Though no president has ever successfully eliminated national monuments, several have changed their shapes, and even shrunk them. President Kennedy substantially redrew the boundaries of the Bandelier National Monument in New Mexico, shaving off nearly 4,000 acres and adding 3,000, saying the borders of what needed to be preserved had evolved. When Olympic National Park in Washington was still a monument, it was reduced in size several times to allow timber harvesting, including in 1915 when logs were needed to build Navy ships for World War I.
But there was a big difference between those changes and the ones Trump may be seeking now: The earlier presidential moves to redraw monument boundaries were not contested. The courts have yet to weigh in on whether a president can take such action when stakeholders such as American Indian tribes, environmental groups and lawmakers vehemently object.
Those groups have made clear that they won’t let Trump lift protections off a single acre of monument land without a bitter court fight.
Justin Pidot, a former deputy solicitor general at the Interior Department who now teaches law at the University of Denver, said if he were working for this administration, he would be warning Zinke that the legal arguments are shaky. But, Pidot allowed, that may not be an overriding concern in this case.
“A lot of things this administration does, it does for political theater,” he said. “They can say they have done them, and then they get to rail against the courts for stopping them.”