We the undersigned 121 law professors with expertise in environmental, natural resources, and administrative law, and related fields, submit these comments to express our serious concerns with the process initiated by Executive Order (EO) 13792, which directs the Secretary of the Interior (Secretary) to “review” all national monuments designated or expanded after January 1, 1996, that either include more than 100,000 acres of public lands or for which the Secretary determines inadequate “public outreach and
coordination with relevant stakeholders” occurred. The Department of Commerce is conducting a separate review of five Marine Monuments. EO 13792 and the President’s public statements upon signing that order reflect profound misunderstandings of both the nature of national monuments and the President’s legal authority under the Antiquities Act. . . .
The Secretary sent the President an interim report on June 12, 2017 (Bears Ears Interim Report), recommending that the size of the Bears Ears National Monument be reduced . . . .
Most fundamentally, EO 13792 and the Bears Ears Interim Report imply that the President has the power to abolish or diminish a national monument after it has been established by a public proclamation that properly invokes authority under the Antiquities Act. This is mistaken. Under our constitutional framework, the Congress exercises plenary authority over federal lands. The Congress may delegate its authority to the President or components of the executive branch . . . . [T]he Antiquities Act is a limited delegation: it gives the President authority only to identify and reserve a monument, not to diminish or abolish one. Congress retained that power for itself. . . .
It is beyond question that the proclamations creating the national monuments under review . . . identify a wealth of unique and precious resources that qualify as “objects of historic and scientific interest” throughout the reserved federal lands. These proclamations are, therefore, lawful. If the new administration believes that those objects and the lands containing them do not warrant protection, or that factors external to the Antiquities Act should be considered in evaluating national monument designations, the administration must turn to Congress for a remedy.
Public comments from 121 law professors re: the president does not have power to eliminate or shrink national monuments, July 6, 2017
House Committees Natural Resources, Veterans Affairs, Small Business Dem Forum: A Monumental Mistake: The Implications of President Trump’s Executive Order on National Monuments, June 8, 2017