Trump's DOJ takes aim at the Antiquities Act

Also: Cutting through the public land sell-off misinformation

Boulder in Bears Ears National Monument. Jonathan P. Thompson photo

🌵 Public Lands 🌲

Somewhat lost among the hubbub over Republicans’ efforts to sell off and otherwise deface public lands was a legal opinion by the Trump administration’s Justice Department published on May 27. In it, Deputy Assistant Attorney General Lanora C. Pettit argues that a president has the authority to alter or eliminate a national monument designated under the Antiquities Act.

The opinion was clearly aimed at laying the legal groundwork for Trump to shrink and revoke national monuments, as he did during his first term and as was laid out in Project 2025, which has, indeed, guided policy during Trump’s second term. Trump’s main targets are expected to be Bears Ears, Grand Staircase-Escalante, and any or all of the national monuments established by former President Joe Biden.

I’m no lawyer, so I can’t say much about the legal merits of Pettit’s arguments. But I can say that in spite of its wordiness — Pettit spends 50 pages repeating her thin arguments in an apparent effort to bore the reader into acquiescence — the opinion lacks substance and logic.

Pettit’s case relies on two basic points.

• The Antiquities Act says the President may, at their discretion, reserve parcels of federal land, “the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Therefore, Pettit argues, if another president decides the monument violates the “smallest area compatible” requirement, they can shrink it accordingly.

• Pettit claims that since the Antiquities Act doesn’t explicitly block a future president from revoking or modifying a national monument, it gives them the power to do so. After all, she adds, non-Antiquities Act land withdrawals, along with just about any other executive order, can be reversed by subsequent executive orders.

The first premise is more or less the same argument Utah relied on in its failed lawsuit to overturn Biden’s restoration of Bears Ears and Grand Staircase-Escalante national monuments’ original boundaries. They claim that the monuments are simply too darned big, and are not “confined to the smallest area compatible” to protect the “objects” in question. But as a federal judge ruled, the Antiquities Act grants the president who establishes a national monument the discretion to decide what that means. (Click on the link below for my counter-argument).

Big win for Bears Ears, Grand Staircase-Escalante

As for the second point? Give me a break! The Antiquities Act has been around since 1906, and was updated as recently as 2014. If Congress wanted a president to be able to reverse a previous president’s national monument designation, it would have written that into the original law or added it later. And if Congress decides that a national monument is larger than necessary to achieve its aims, then Congress can shrink, adjust, or eliminate it altogether (or establish it as a national park).

It is this very permanence or irreversibility that makes the Antiquities Act special and distinguishes it from other types of public land withdrawals and executive orders. It’s what sets, say, Bears Ears National Monument apart from the 20-year oil and gas leasing bans around Chaco Culture National Historical Park and on the Thompson Divide. The former can’t be reversed by an executive order because it was established under the Antiquities Act; the latter two can because they were implemented by executive orders.

If the courts — and ultimately the Supreme Court — were to fall for Pettit’s arguments, it would render impotent one of the nation’s foundational environmental and cultural protection laws. After all, the Grand Canyon, Zion, Chaco, Capitol Reef, Arches, and many more of America’s treasured national parks first were established as national monuments under the Antiquities Act. Imagine if a later president, out of spite for his predecessor, had decided to simply abolish with a stroke of a pen any of these designations before Congress gave them park status and open them up to drilling and mining.

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It was with great alarm this morning that I read this headline atop Wes Siler’s newsletter:

Turns out my anguish was completely unnecessary. Why? Because the headline is misleading and, quite frankly, wrong.

Yes, MAGA Sens. Mike Lee and Steve Daines did amend their budget reconciliation provision in a way that appears to expand the land that is eligible for “disposal” from 120 million acres to about 258 million acres. This was done by removing specific language about excluding land with existing rights, such as active grazing allotments. Yeah, you got that right: these guys aren’t even going to let public land ranchers get in the way of their zeal to privatize and develop public lands!

But while that expands the pool of land from which nominations can be made, it does not increase the amount of land that would actually be sold. The amendment as currently written would cap total sales at .75% of Bureau of Land Management and Forest Service land, or about 3.2 million acres. It does not authorize the sale of any lands beyond that amount.

Sen. Mike Lee revives public land sell-off bid

Here’s the language straight from the amendment:

Note the “not more than .75 percent” clause. Yes, 3.2 million acres is too much, and it’s plenty to be outraged about. Hell, 100,000 acres is too much. But it’s not 258 million acres, and it’s not “40% of all public land.” (You can check out the original amendment here and compare it to the revised document here — courtesy of E&E News.

Interestingly, the revised version also omits clauses prioritizing disposal of isolated tracts of land or ones that contribute to checkerboards. And, more significantly, it removes requirements that land shall not be sold for “less than fair market value.” In other words, these guys no only want to sell the public’s land to developers, but they want to do it on the cheap, thereby robbing the American taxpayer twice. On the other hand, the new version subtly changes the language to specify that any disposed land must be used for housing — albeit not necessarily affordable housing. Again, that means someone could put a multi-million dollar mansion on your favorite public land getaway.

The confusion appears to stem from a Wilderness Society map and press release regarding which lands could be nominated for disposal under the bill. It notes:

Just because land is eligible to be nominated for disposal does not mean it would actually be for sale, nor would it authorize the Interior Department to sell it off in the future. Of that 258 million acres, nearly 255 million acres will not go on the auction block — at least not under this particular legislation as it’s currently written. That said, if Congress passes this 3.2 million acre sell-off and its Republican pushers escape political consequences, then you can count on the GOP proposing bigger sell-offs in the future. And after this one gets through, then it will be much easier to just continue reauthorizing the 3 million acres-per-year sales until it’s all gone.

But even this proposed sell-off could be tragic, in that the pool of available land includes some very special acreage, indeed. The Wilderness Society map does a good job of showing the eligible areas, and you can see it here. Western Watersheds Project made their own map of disposal-eligible lands here.

Keep in mind, of course, that if Trump is able to eliminate and shrink national monuments, it will open up even more acreage to “disposal.”

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⛈️ Wacky Weather Watch⚡️

• The National Weather Service issued its first-ever heat advisory for Alaska after temperatures in the Interior reached 89° Fahrenheit. Huh. I wonder what could have caused that? It’s almost as if the climate’s heating up … (Alaska Beacon)

• Heavy rains pounded parts of the Southwest earlier this month, leading to some huge flash flooding, including at Havasupai Falls in the Grand Canyon. There were no casualties this year. In northwestern New Mexico, however, record-breaking precipitation amounts overwhelmed the North Farmington Ditch, taking out sections of its bank and damaging some homes. Former ditch rider David Fosdeck said a recent airport runway expansion above the most extensively damaged section of the ditch may have contributed to the flooding, since it added more impermeable surfaces and therefore increased runoff. (Tri-City Record)

In other news …

• The Trump administration is applying its “energy emergency” accelerated 14-day environmental review process to another project, this time it plans to skirt federal laws and public input to approve a proposed 74-mile natural gas pipeline running from Helena to Three Forks in Montana. (DOI press release)

• Interior Secretary Doug Burgum is considering withdrawing a Biden-era oil and gas drilling ban around Chaco Culture National Historical Park, prompting New Mexico’s congressional delegation to call on him to back off, saying it could harm one of the continent’s “most sacred landscapes.” (Source NM)

• The Trump administration is looking to lift a court’s hold on a 5,000-well oil and gas drilling project in Converse County, Wyoming, with a new environmental review claiming that drilling thousands of wells and sending massive amounts of water, chemicals, and sand into the earth would not significantly impact groundwater. That’s in spite of the fact that a recent oil and gas sale there failed to attract much interest, and netted just $7.7 million, another sign that Trump’s “energy dominance” agenda can’t compete with the drilling-deterring effects of low oil and gas prices and tariffs on steel and aluminum. (Cowboy State Daily)