Editor's note: Homestead National Monument of America was removed from the list of established monuments that could not be entirely viewed as scientific or historic as it was created by an act of Congress, not presidential declaration.

President Trump clearly exceeded his authority when he lopped roughly two million acres off of two national monuments in Utah, according to a law professor who closely examined past modifications to national monuments as well as powers given presidents under The Antiquities Act along with overarching Constitutional authorities and congressional jurisdiction.

That, of course, is one lawyer's view.

There are many others who believe the president was clearly within his authority to greatly reduce the size of the Grand Staircase-Escalante and Bears Ears national monuments in Utah that Presidents Clinton and Obama, respectively, created through their authority under the act. It's a debate that currently resides in the courtroom of Judge Tanya Chutkan in the U.S. District Court for the District of Columbia. How long the matter resides there is anyone's guess, but more than likely the outcome will be appealed by one side or the other.

To arrive at his conclusion about the validity of Trump's actions, John Ruple, a research professor of law and a fellow at the Wallace Stegner Center at the University of Utah in Salt Lake City, combed through every previous monument modification by presidents to contrast the justifications Trump pointed to in 2017 when he severed nearly one million acres from the Grand Staircase-Escalante and another one million acres from Bears Ears. That review failed to find a historical precedent to support Trump's executive orders, the law professor said in a 76-page paper that appeared earlier this month in the Harvard Environmental Law Review.

Trump's move to redraw the two monuments started soon after he took office at the urging of Utah's congressional delegation. In April 2017 he directed then-Interior Secretary Ryan Zinke to review monuments designated by Presidents George W. Bush, Bill Clinton, and Barack Obama under The Antiquities Act. In the ensuing months Zinke, who in December 2018 resigned under scrutiny for how he acted as secretary, looked at 27 national monuments larger than 100,000 acres, either in person (8) or via their paper trails. He spent time on the ground in Utah visiting Bears Ears and Grand Staircase-Escalante, and also traveled to Katahdin Woods and Waters National Monument in Maine where he spent time canoeing and visiting with area residents and politicians.

The debate over the monuments' review drew national attention. A public comment period on the initiative saw about 98 percent of the roughly three million comments voice support for keeping the monuments as they were created, and groups as diverse as military veterans, law professors, paleontologists who view the Grand Staircase-Escalante as one of the world's best sites for fossils, scientists, conservation organizations, even venture capitalists weighed in to defend the monuments.

This map reflects President Trump’s reduction of Grand Staircase-Escalante National Monument (bolded areas) with the number of known excluded paleontological sites in each/P. David Polly, 2018, CC BY-ND

Zinke, however, was not swayed, and went so far as to say the public comments were the result of "a well-orchestrated national campaign organized by multiple organizations." His recommendations to Trump were based on his belief that "a number of current national monuments were created with inadequate consultation with the state, local, and tribal governments and communities most affected. This has resulted, in many cases, in national monuments that restrict the use of far too much land."

While Grand Staircase-Escalante and Bears Ears are not administered by the National Park Service, how the matter plays out could significantly impact the many monuments within the National Park System. 

The Antiquities Act

Driving this debate is the 113-year-old Antiquities Act. Congress passed it, and President Theodore Roosevelt signed it into law, in 1906. It was seen as necessary to protect cultural resources in the Southwest from "pot hunters" and others seeking to enrich themselves through the sale of "antiquities" from long ago cultures. 

In 1901, Dr. Walter Hough completed five months of field work in northeastern Arizona for the National Museum. He made observations at more than fifty-five village sites, including three groups of ruins in the vicinity of Petrified Forest, and excavated in eighteen sites. "The great hindrance to successful archaeologic work in this region," he observed, "lies in the fact that there is scarcely an ancient dwelling site or cemetery that has not been vandalized by 'pottery diggers' for personal gain." -- Vandalism and Commercialism of Antiquities, 1890-1906, by Ronald F. Lee

But through the decades, the act also has been used to protect areas not entirely viewed as scientific or historic: Fort Monroe National Monument or Belmont-Paul Women's Equality National Monument, for example.

President Theodore Roosevelt was the first to use the Antiquities Act to preserve landscapes/Library of Congress

President Trump's stated concern was that his most recent predecessors had overstepped their authority under the act by not limiting their designations to "to the smallest area compatible with proper care and management of the objects to be protected." Secretary Zinke drove that point home in his report to the president:

While there are many instances when the Act has been used for the proper stewardship of objects, I have concerns that modem uses of the Act do not clearly and consistently define the objects. Lending further to this concern is that there are other areas, not a part of a monument, which contain virtually identical objects. The West was inhabited by ancient cultures, the remnants of which are well-preserved due to the West's arid climate, and can be found throughout the land. There is a legitimate question as to why only some of these resources were chosen as objects to protect under the Act, while others were not.

Throughout the review, I have seen examples of objects not clearly defined in the proclamations. Examples of such objects are geographic areas including viewsheds and ecosystems. Proper use of the Act should specifically identify the "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest," and the quantity of land necessary to protect each object, if any.

But President Clinton's proclamation for the Grand Staircase-Escalante National Monument in 1996, for example, was fairly specific and descriptive. He pointed to cultural, archaeological, paleontological, and geological resources.

The monument includes world class paleontological sites. The Circle Cliffs reveal remarkable specimens of petrified wood, such as large unbroken logs exceeding 30 feet in length. The thickness, continuity and broad temporal distribution of the Kaiparowits Plateau’s stratigraphy provide significant opportunities to study the paleontology of the late Cretaceous Era. Extremely significant fossils, including marine and brackish water mollusks, turtles, crocodilians, lizards, dinosaurs, fishes, and mammals, have been recovered from the Dakota, Tropic Shale and Wahweap Formations, and the Tibbet Canyon, Smoky Hollow and John Henry members of the Straight Cliffs Formation. Within the monument, these formations have produced the only evidence in our hemisphere of terrestrial vertebrate fauna, including mammals, of the Cenomanian-Santonian ages. This sequence of rocks, including the overlaying Wahweap and Kaiparowits formations, contains one of the best and most continuous records of Late Cretaceous terrestrial life in the world.

Archeological inventories carried out to date show extensive use of places within the monument by ancient Native American culture. The area was a contact point for the Anasazi and Fremont cultures, and the evidence of this mingling provides a significant opportunity for archeological study. The cultural resources discovered so far in the monument are outstanding in their variety of cultural affiliation, type and distribution. Hundreds of recorded sites include rock art panels, occupation sites, campsites and granaries. Many more undocumented sites that exist within the monument are of significant scientific and historic value worthy of preservation for future study.

The monument is rich in human history. In addition to occupations by the Anasazi and Fremont cultures, the area has been used by modern tribal groups, including the Southern Paiute and Navajo. John Wesley Powell’s expedition did initial mapping and scientific field work in the area in 1872. Early Mormon pioneers left many historic objects, including trails, inscriptions, ghost towns such as the Old Paria townsite, rock houses, and cowboy line camps, and built and traversed the renowned Hole-in-the-Rock Trail as part of their epic colonization efforts. Sixty miles of the Trail lie within the monument, as does Dance Hall Rock, used by intrepid Mormon pioneers and now a National Historic Site. -- From Proclamation 6920—Establishment of the Grand Staircase-Escalante National Monument, September 18, 1996

Citadel Ruins, Bears Ears National Monument/BLM

President Obama was similarly descriptive when he designated Bears Ears National Monument:

Rising from the center of the southeastern Utah landscape and visible from every direction are twin buttes so distinctive that in each of the native languages of the region their name is the same: Hoon'Naqvut, Shash Jáa, Kwiyagatu Nukavachi, Ansh An Lashokdiwe, or "Bears Ears." For hundreds of generations, native peoples lived in the surrounding deep sandstone canyons, desert mesas, and meadow mountaintops, which constitute one of the densest and most significant cultural landscapes in the United States. Abundant rock art, ancient cliff dwellings, ceremonial sites, and countless other artifacts provide an extraordinary archaeological and cultural record that is important to us all, but most notably the land is profoundly sacred to many Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe.

The area's human history is as vibrant and diverse as the ruggedly beautiful landscape. From the earliest occupation, native peoples left traces of their presence. Clovis people hunted among the cliffs and canyons of Cedar Mesa as early as 13,000 years ago, leaving behind tools and projectile points in places like the Lime Ridge Clovis Site, one of the oldest known archaeological sites in Utah. Archaeologists believe that these early people hunted mammoths, ground sloths, and other now-extinct megafauna, a narrative echoed by native creation stories. Hunters and gatherers continued to live in this region in the Archaic Period, with sites dating as far back as 8,500 years ago.

Ancestral Puebloans followed, beginning to occupy the area at least 2,500 years ago, leaving behind items from their daily life such as baskets, pottery, and weapons. These early farmers of Basketmaker II, and III and builders of Pueblo I, II and III left their marks on the land. The remains of single family dwellings, granaries, kivas, towers, and large villages and roads linking them together reveal a complex cultural history. "Moki steps," hand and toe holds carved into steep canyon walls by the Ancestral Puebloans, illustrate the early people's ingenuity and perseverance and are still used today to access dwellings along cliff walls. Other, distinct cultures have thrived here as well -- the Fremont People, Numic- and Athabaskan-speaking hunter-gatherers, and Utes and Navajos. Resources such as the Doll House Ruin in Dark Canyon Wilderness Area and the Moon House Ruin on Cedar Mesa allow visitors to marvel at artistry and architecture that have withstood thousands of seasons in this harsh climate.

But Zinke was unmoved. Along with calling for the breakup of Grand Staircase-Escalante and Bears Ears into smaller parcels, he recommended that:

* The boundaries of Gold Butte National Monument in Nevada be reduced to protect five historic water district springs used by the local water district;

* Cascade-Siskiyou National Monument on the Oregon-California border be reduced in size to remove private lands and those lands designated for timber harvesting;

* Management guidelines for Katahdin Woods and Waters National Monument in Maine allow for forest thinning to promote healthy forests.

Zinke did at the same time recommend three new monuments: The Badger II Medicine Area in Montana, Camp Nelson in Kentucky, and the Medgar Evers Home (Mississippi).

The Trump administration's efforts to revise these monuments led to legislation being introduced into the U.S. Senate in 2018 by Sen. Senator Tom Udall, a New Mexico Democrat, and 17 Democratic senators. It specifically reinforced that "as established by Federal law, a national monument may only be reduced, diminished, or revoked by an Act of Congress..." It also called for the original boundaries of Grand Staircase-Escalante and Bears Ears to be held in force. The GOP-controlled Senate did nothing with the measure.

Federal Lands vs. States Rights

By declaring new boundaries for Grand Staircase-Escalante and Bears Ears, President Trump claimed he was acting to preserve "states rights." At the same time, his action could also allow those roughly 2 million acres of federal lands removed from the monuments to be opened to energy development and other uses monument status had banned, a motivation that was outlined in emails that subsequently came to light.

"Some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington," the president said during a December 2017 appearance in Salt Lake City, Utah, with politicians from the Beehive State and Secretary Zinke. "And guess what: They're wrong."

Trump's wording was out of context, as the lands from which the two monuments were created and their natural, cultural, and historic resources are held by the federal government for the entire country, not exclusively for Utah's benefit.

The rugged landscape of Grand Staircase-Escalante holds many treasures/BLM

The landscapes in question could have been used in a Hollywood Western, and some of them have been. A set depicting an Old West town where numerous movies have been staged lies in the arid canyon country east of Kanab, Utah. The land that the two monuments are set upon on its face looks spare and wanting, desperately short of water, and riddled with canyons. Yet they are rich in archaeological, paleontological and, in some places, energy and mineral, resources. A hard rock mine that shut down when President Clinton established the Grand Staircase-Escalante monument could soon be back in operation, as President Trump's realignment of the monument places the mine outside its boundaries and a Canadian-based mining company has purchased the rights to it.

Trump's executive orders to undo Bears Ears and Grand Staircase-Escalante unleashed legal filings that challenged the president's move as unprecedented and without authority, and brought into public discourse the Antiquities Act and "FLPMA (flip-ma)," the Federal Land Planning Management Act of 1976. Diverging legal opinions were offered -- dozens of organizations have either sought standing in the case or filed amicus briefs -- attacking, and defending, Trump's authority to revise boundaries of monuments.

Five attorneys (Robert Rosenbaum, Andrew Shipe, Lindsey Beckett, Andrew Treaster, and Jamen Tyler) from Arnold & Porter Kaye Scholer noted that when FLPMA was adopted, "the House committee explained that that law 'would also specially reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act."

...the Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which the Executive may withdraw lands without legislative action; -- 43 U.S. Code § 1701

Furthermore, the five argued that a president has no authority through either the U.S. Constitution or an act of Congress to rise above Congress's authority under the Constitution's Property Clause, "which provides that '[t]he Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.'"

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state. -- U.S. Constitution, Article IV.

But in contrast to those five attorneys, John Yoo and Todd Gaziano of the American Enterprise Institute have maintained that they "believe a president’s discretion to change monument boundaries is without limit, but even if that is not so, his power to significantly change monument boundaries is at its height if the original designation was unreasonably large under the facts as they existed then or based on changed circumstances." They supported their view by pointing to past monument modifications made by presidents:

• President Eisenhower reduced the reservation for Great Sand Dunes National Monument by 25 percent. (He reduced the original 35,528-acre monument by a net 8,920 acres.)
• President Truman diminished the reservation for Santa Rosa Island National Monument by almost half. (The original 9,500-acre reservation by Franklin Roosevelt was diminished by 4,700 acres.) 
• Presidents Taft, Wilson, and Coolidge collectively reduced the reservation for Mount Olympus by almost half, the largest by President Wilson in 1915 (cutting 313,280 acres from the original 639,200-acre monument). 
• The largest percentage reduction was by President Taft in 1912 to his own prior reservation in 1909 for Navajo National Monument. (His elimination of 320 acres from the original 360-acre reservation was an 89 percent reduction.)

Ruple examined those modifications, too, and concluded that they "can be classified either as minor boundary adjustments to early monuments that were designated on unsurveyed lands, revisions intended to improve resource protection rather than to accommodate commodity production, or as adjustments made under the President's Article II war powers in relation to the two World Wars."

In the early part of the 20th century, the professor wrote, surveys were often flawed through careless work, or non-existent. "Poor quality surveys of both the objects of scientific or historic interest and the landscape in which those resources existed were a pervasive problem," the professor found. "Presidents revised monument proclamations at least six times to address survey errors."

Too, he continued, presidents sometimes intentionally overreached with their designations. "Several early national monuments were set aside in haste, before the specific locations of the objects to be protected were well known," he claimed. "Absent a careful description of the locations of these objects, early proclamations sometimes cast a wide net, protecting a larger geographic area than was intended in order to ensure that objects of historic or scientific interest were not left unprotected."

Great Sand Dunes National Park was modified by presidents a couple times when it was a national monument/NPS

For example, the professor noted that President Truman in 1946 realigned the boundaries of Great Sand Dunes National Monument in Colorado after new surveys by the General Land Office found that certain lands described in the initial proclamation setting aside the monument "do not exist." A decade later President Eisenhower tweaked the boundaries again, as Yoo and Gaziano noted, but he did so to both remove private land from the monument and "place 4,386 acres of state-owned lands outside of monument boundaries," Ruple found.

In the case of Mount Olympus, later renamed Olympic National Park, it was rather haphazardly designated by President Roosevelt just two days before he left office in 1909. Congressman William Humphrey of Washington state recounted his encounter with the president on the matter:

"Without waiting for any formal greeting, as soon as he entered he called to me across the room, 'Tell me what you want, Mr. Humphrey, and I will give it to you. Do not take time to give me details, simply tell me what you wish me to do.' I said, Mr. President, I want you to set aside as a National Monument, 750,000 acres in the heart of the Olympic Mountains, the main purpose of this is to preseve the elk in the Olympics.' He replied, 'I will do it. Prepare your order and I will sign it.' That was the whole transaction. I shook hands with him, wished him success in Africa (where Roosevelt was heading for a safari), and told him goodbye.'"

Later, to remove private lands from the monument, President Taft in 1912 realigned the boundaries to take out 160 acres, and in 1929 President Coolidge removed 640 acres that were homesteaded. President Wilson in 1915 did indeed cut roughly 300,000 acres from the monument, but "on the basis of military needs for timber and minerals;" primarily, to allow for logging of spruce trees for the war effort, Ruple determined. And then, he added, only after "the Department of Agriculture investigated the boundary change and concluded that the reduction would not impact elk summer range or glaciers -- the resources the monument was set aside to protect." 

Some in the legal community, however, maintain that because Congress didn't object to these reductions, it in effect recognized the presidents' authority to tinker with national monuments. Fast-forward to 2002, though, and a president disagreed. That presidents lack authority to undo monument designations was voiced by the George W. Bush administration before the U.S. Supreme Court in a case involving the state of Alaska, pointed out Ruple.

The establishment of a national monument was intended to be permanent -- both because the statute speciifed that the purpose of the establishment was to preserve the national monuments unimpaired for future generations and because only Congress could abolish a national monument. Congress was well aware of the need for legislation to abolish national monuments. -- The Bush administration.

Congress' Stance

If the Antiquities Act gives presidents the prerogative to create, and deconstruct or even abolish, national monuments, why have their been more than a handful of legislative efforts in Congress to specifically give the president such authority? Should it be inferred that Congress doesn't want to give presidents such authority through the body's failure to act on those legislative attempts?

"There were, I think, seven bills that were introduced that would have specifically authorized the president of the United States to unilaterally revise or reduce or even eliminate national monuments," Ruple told me. "And every one of those has failed.”

"... If the president had the authority, Congress certainly wouldn’t need to introduce these bills six, seven times over," he continued. "And then, the fact that Congress chose not to move forward with any of those, that doesn’t necessarily prove that Congress didn’t support the president’s power, but I think it should make us ponder. Right?"

Though the court battle hasn't gotten fully underway -- Judge Chutkan is waiting on some final legal briefs to be filed later this month before moving forward -- those who maintain that Trump overstepped his authority are confident they'll be proved right.

"There were numerous times in which Congress considered and rejected proposals to give the executive that authority, so all of that is really persuasive and, ultimately, after Congress passed the FLPMA of 1976, it really clarified that only Congress has the authority to modify monuments," said Heidi McIntosh, the managing attorney in Earth Justice's Rocky Mountain office in Denver. "And it all makes sense. If it weren’t the case, you’d have all these ping-ponging monument designations followed by revocations or modifications and there would be no stability. And Congress’s original intent to protect places that needed protection would completely evaporate."

More specific to Grand Staircase-Escalante, the attorney pointed out that since it was created in 1996 by Clinton the Congress has not acted to abolish or reduce it in size.

"Congress has on several occasions actually ratified the monument by passing legislation that approved that land exchange, that approved the $50 million payout to the state of Utah in conjunction with the land exchange," said McIntosh. "It modified boundaries of the Grand Staircase slightly. So, it just doesn’t add up that Clinton’s designation was too big or that Congress would approve of any kind of modification or shrinking of it given their own stamp of approval on the monument as designated by Clinton.”

She also noted that Congress, at about the same time it passed the Antiquities Act, approved other legislation that gave the president the authority not only to create national forests, but to shrink or abolish them.

"So it knew how to give the president the authority to modify or revoke when it wanted to, and it didn’t do that in the Antiquities Act, even though it had just done that in a similar statute," said McIntosh.

Taking Sides

The lines of those for or against Trump and his handling of national monuments are long. 

It shouldn't be overlooked that Ruple is not a disinterested observer in this debate. He is on the board of directors of Friends of Cedar Mesa that is challenging the modifications to Bears National Monument. Plus, his 76-page paper in the Harvard Environmental Law Review was made possible in part by the Wilburforce Foundation, which works for natural resource conservation. But he doesn't think that colored his findings.

“It’s fair to say that I’m not disinterested, but at the same time, in fairness, my academic reputation and credibility is out there, too," the law professor said the other day during a phone conversation. "If I’m seen as just a blatant hack, then that has its own personal and professional consequences. I think what you see in the scholarship (of the paper) is we tried very, very hard to move the debate from rhetoric and kind of bold assertions to kind of carefully researched, carefully supported, well-documented evidence. Reasonable people can disagree about the value, but hopefully they look at my work. The substance of the research hopefully speaks for itself.”

A bit later in the conversation Ruple added that, "I’m sure there are still people out there who are going to look at this and say, 'He’s a partisan hack and he's got an agenda and all that.' Fine, show me an error in the paper. Show me where I misrepresented anything, show me where we left something out, and then we can talk about a correction. I tried really hard to be complete and thorough and accurate and fair."

Libby Fayad, vice president and general counsel of the National Parks Conservation Association, which is part of a legal challenge to the dismantling of Bears Ears, agreed with Ruple's conclusion that "there is little evidence indicating that Congress intended to endow the president with the power to dramatically reduce national monuments. President Trump’s December 2017 action to reduce Bears Ears by 85 percent and Grand Staircase-Escalante by nearly half is illegal, wrongfully attempts to diminish the value of these places, and blatantly disregards the will of tribal communities, local businesses and millions of Americans."

"Our argument stems from the words of the Antiquities Act, the 1906 law that governs how national monuments are created. It says that the president has the right to designate national monuments. It says nothing about revoking or changing monuments. Professor Ruple’s exhaustive study of prior changes to monuments further bolsters our position," she said.

Whether the courts agree with those challenging the president's actions remain to been, and many are watching. For Ruple, the outcome is obvious.

"Reasonable people can disagree about the wisdom of individual monument designations or whether the Antiquities Act, which is more than a century old, adequately reflects contemporary values," he wrote in summation. "Those seeking redress for perceived injury are not without a remedy, but that remedy resides in the halls of Congress, which unquestionably has the power to create, modify, or even revoke national monument designations. There is no reason to expand the power of the President by creating implied powers that are supported neither by history nor by law."