WASHINGTON, DC, Dec. 5, 2016 – Congress has traditionally played a large role in the creation, abolition and conversion of national monuments but recent gridlock has forced Congress to forfeit its part in these issues, according to an analysis posted today by Public Employees for Environmental Responsibility (PEER). In contrast to the legal certainty flowing from Congressional action, calls for a President Trump to revoke prior national monumental proclamations would lead to lengthy litigation, paralysis and no certain outcome.
“Over the decades, Congress has played a major role in what national monuments were created, changed and, in some cases, revoked but this important dimension has largely fallen into disuse,” stated PEER Board Chairman Frank Buono, a former career National Park Service manager who assembled historical research on the origin and evolution of monuments. “While Congress has abolished presidentially-created monuments, no president ever has and, unlike Congress, it is a wide open legal question whether he can.”
The analysis details Congress’ past robust involvement with monuments, including that –
- Nearly one-third (27 of 83) of the extant national monuments inside the National Park System were created by acts of Congress, rather than by a presidential proclamation. Nor has Congress shied away from creating large national monuments, such as El Malpais National Monument in New Mexico which covers 114,276 acres of varied landscapes;
- Besides park system national monuments, Congress created at least one BLM-administered national monument, Prehistoric Trackways in New Mexico. Congress also created four Forest Service national monuments, Misty Fjords and Admiralty Island in Alaska, and Mt. St. Helen’s in Washington, and Newberry Crater in Oregon;
- Congress has abolished several national monuments created by presidential proclamations, including Fossil Cycad (SD) (1956), Lewis and Clark Cavern (MT) (1937), Papago Saguaro (AZ) (1930), Shoshone Cavern (MT) (1954) and Verendrye (ND) (1956); and
- Congress abolished another 52 national monuments by incorporating their land into National Parks, National Historical Parks, National Preserves or other units.
Unlike this well-established role, a recent Congressional Research Service legal memo (“Antiquities Act: Scope of Authority for Modification of National Monuments” November 14, 2016) concludes that
No President has ever abolished or revoked a national monument proclamation, so the existence or scope of any such authority has not been tested in courts. However, some legal analyses since at least the 1930s have concluded that the Antiquities Act, by its terms, does not authorize the President to repeal proclamations, and that the President also lacks implied authority to do so.
“Having a President Trump take the unprecedented step of trying to unilaterally revoke monuments is guaranteed to trigger lawsuits that will likely remain unresolved during his tenure,” concluded PEER Executive Director Jeff Ruch, noting that even if the presidential proclamation is rescinded, it is unclear whether the presidential withdrawal of these lands from drilling and mining remains in effect. “Congresspersons who bellyache about national monuments set aside for the American people over the last generation have only themselves to blame for abdicating the constructive and dynamic role in national monuments played by past Congresses.”
Read Congressional Research Service memo