Review of Monument Designations Draws Scrutiny

In the early days of his administration, President Donald Trump directed Secretary of the Interior Ryan Zinke to review all national monuments designated since 1996 that are at least 100,000 acres in size or made “without adequate public consultation.” Subsequently, Secretary Zinke issued a report recommending modification of boundaries and use restrictions for specific national monuments, including two in New England: Northeast Canyons and Seamounts National Monument off Cape Cod; and Katahdin Woods and Waters National Monument in Maine. On December 4, 2017, President Trump followed two of the recommendations and issued proclamations reducing the size of Grand Staircase-Escalante and Bears Ears national monuments in Utah.

Within his report, Secretary Zinke prioritized “public access, infrastructure upgrades, repair, and maintenance, traditional use, tribal cultural use, and hunting and fishing rights” for the subject monuments and their historic or scientific interest. While he recommended reductions and management changes to several monuments, mostly in the western United States, he also recommended creation of monuments at two important civil rights sites in Kentucky and Mississippi, and at a location in Montana considered sacred by the Blackfeet tribe.

Of local importance, Secretary Zinke recommended allowing commercial fishing within the Northeast Canyons and Seamounts National Monument. To balance protection with the commercial fishing industry, he suggested maintaining regional fishery management control over the area pursuant to the Magnusson-Stevens Fishery Conservation and Management Act. Interestingly, the Pacific Legal Foundation filed suit on behalf of New England fishing groups challenging the legality of the overall monument designation. As a result, this monument’s future is faced with some uncertainty.

Although Secretary Zinke proposed maintaining the existing boundaries of the Katahdin Woods and Waters National Monument in Maine, he recommended several modifications to its use and management. These changes include permitting timber harvests, making infrastructure upgrades, and establishing public access for “traditional uses” such as snowmobiling and hunting.

As of the date of this article, President Trump has not signed off on any modifications or changes to either of the New England monuments. Proponents and critics of Secretary Zinke’s recommendations are thus taking a wait-and-see approach. In Utah, however, opponents of the President’s actions quickly filed suit, focusing claims on the following: constitutional arguments (separation of powers); Administrative Procedures Act; and violations of the Antiquities Act itself. With the latter, detractors argue that the Antiquities Act permits a president to only create national monuments, not to modify or revoke them.

Supporters of the President’s proclamations argue that discretion afforded executive authority permits revocation and modification of the power to designate monuments. This is especially true, they claim, when prior designations were made contrary to the Acts’ requirements such as reasonableness in the size of the monument.

While past presidents have reduced monuments, none have done so recently or at this scale. And no court has reviewed presidential authority to revoke or modify prior national monument designations. Already under the microscope, the Northeast Canyons and Seamounts National Monument and Katahdin Woods and Waters National Monument are sure to be affected by this issue of first impression. As a result, forthcoming proclamations and legal developments are certain to garner significant attention.