- The Washington Times - Thursday, November 24, 2016

Western lands activists are urging Donald Trump to test the limits of executive power by revoking millions of acres that President Obama set aside as national monuments, setting up a landmark legal battle over one of the nation’s most frequently used environmental protections.

Such a step would be historic. No president has undesignated a national monument created by his predecessor, and it’s unclear whether he has the authority to do so.

But Obama administration critics say now is the time to try to establish a precedent. They say Mr. Obama has wildly abused presidential power in using the 1906 Antiquities Act to cordon off huge swaths of land and sea — mostly along the West and East coasts — to prevent energy exploration. In total, he has earmarked at least 553 million acres of land and water as national monuments, far more than any other president.

National monument markings prohibit oil and gas drilling and coal mining, meaning Mr. Obama has used his monument authority to effectively shut down huge areas of potential energy exploration and has drawn praise from environmental activists in the process.

If Mr. Trump attempts to free up land for drilling, mining or any other purpose by vacating national monuments, he likely would spark a legal case that ultimately would end up before the Supreme Court, said William Perry Pendley, president of the Mountain States Legal Foundation, a nonprofit land rights group.

“I think [incoming] President Trump has plenty of power to vacate the illegal actions of President Obama with regard to those monument decrees,” Mr. Pendley said while acknowledging others have much different views.

“Frankly, I think this is a question that needs to be answered, potentially, by the Supreme Court,” he said. “Where is it written that a president on a land issue can bind all future presidents? That’s insane.”

Indeed, there is no language in the Antiquities Act or any other legislation that says a president can’t reverse a national monument designation. But there’s also no clear language giving him the power to do so.

The act does give the president authority to establish monuments on land containing “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

Mr. Obama has used that authority broadly in establishing more than two dozen monuments. Earlier this year, he declared the Stonewall Inn in New York City as the first national monument to the gay rights movement. Also this year, he established 4,913 square miles off the New England coast as a marine monument, along with more than 87,000 acres in the Maine wilderness and more than 1.8 million acres in the California desert as protected national monuments.

He also is expected to establish others before leaving office in January.

The vast majority of his monument declarations have been in the sea. When Mr. Obama established the Northeast Canyons and Seamounts Marine National Monument off the coast of New England this year, he said it was to prevent unsustainable fishing practices and other human activity from ruining the water.

“If we’re going to leave our children with oceans like the ones that were left to us, then we’re going to have to act, and we’re going to have to act boldly,” he said.

Although he has done plenty of creating and expanding, Mr. Obama has not shrunk the size of any national monument. But at least three presidents diminished the size of the Mount Olympus National Monument in Washington. Those reductions have never been challenged, and presidents’ authority to shrink the scope of monuments is widely accepted.

Eliminating a monument altogether is a different story. One of the few written opinions on the matter came from Homer Cummings, who wrote in 1938 as U.S. attorney general that a president cannot revoke a national monument. But that argument was never challenged in court.

Congressional Research Service reports on presidential authority also have failed to deliver clear answers.

Starting any legal battle would be environmental activist groups that have applauded Mr. Obama’s actions. Those groups are itching for a fight with the Trump administration.

“If the president tries to undo any national monument done by any previous president, we will see his administration in court,” said Randi Spivak, director of the public lands program at the Center for Biological Diversity.

On the other side would be lawmakers such as Rep. Rob Bishop, Utah Republican and chairman of the House Natural Resources Committee, who argued this month that there is no reason to think a president couldn’t simply wipe away a predecessor’s steps.

“It’s never been done before, and that’s why people are saying you can’t do it,” he said. “Of course you can. It’s always been implied.”

Mr. Trump has directly criticized at least one of Mr. Obama’s recent monument declarations.

During an October campaign stop in Bangor, Maine, he blasted the Obama administration for ignoring at least some local landowners when it established a monument on 87,000 acres of woodlands.

“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,” Mr. Trump said.

While Mr. Obama’s moves are now in the crosshairs, his predecessor, President George W. Bush set a record by creating 214 million acres of national monument area, virtually all of it in the Pacific Ocean.

President Clinton also came under fire for designating 1.8 million acres in southern Utah as the Grand Staircase-Escalante National Monument. Critics long have argued that Mr. Clinton acted solely to block energy development.

“One of the reasons President Clinton designated Grand Staircase-Escalante, and the size that it was, was to keep a certain part of it off limits for coal production in the future,” said Daniel Simmons, vice president for policy at the conservative Institute for Energy Research.

He said such massive monument designations also undermine the separation of powers.

“I think it would be good to roll back some monument designations as kind of a check on presidential power,” he said. “What’s going on in many cases — these essentially are presidents overriding the will of Congress. Congress considers whether to make these national parks, and then if the president doesn’t like the outcome, he goes ahead and does it anyway. That’s bad precedent.”

Mr. Pendley, president of the Mountain States Legal Foundation, said he considered Mr. Clinton’s establishment of Grand Staircase-Escalante to be “an illegal use of the Antiquities Act.” But he said it was allowed to stand because his successor, Mr. Bush, chose not to challenge the designation.

He said he hoped Mr. Trump does not follow Mr. Bush’s lead.

“I believe President Trump can have the authority,” Mr. Pendley said. “And unfortunately, President George W. Bush, when he came in, declined to do so, notwithstanding Bill Clinton’s abuse of the Antiquities Act.”

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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