Crises in Texas & Alaska

(Please scroll down to PLF release below)

Ryan Zinke, U.S. Department of Interior Secretary. Northern Gas Pipelines photo by Dave Harbour

Commentary:  We revere the work of Pacific Legal Foundation to protect our Nation’s freedoms.  We particularly appreciate its efforts to protect the vulnerable freedoms of individual American families, small companies and the energy industries.

The President and his Interior Secretary Ryan Zinke have undertaken the noble task of reviewing unilateral land access and land use blockades imposed by prior administrations as a result of declaring large areas of public lands to be “National Monuments”.  The Zinke goal seems to be to determine what monument designations are reasonable and which ones represent an overreaching — or improper use — of authority.

Having escorted (i.e. the late) former Interior Secretary Cecil Andrus on a tour of Alaska natural resource areas over three decades ago, your publisher knows from personal experience how that secretary and his president misused the powers of the presidency to impose unjust, unreasonable monument withdrawal orders (and other restrictions) on the state of Alaska.  The improper use of their office by President Carter and other presidents has emasculated the Alaska Statehood Compact — dependent on reasonable natural resource development — and helped to bring Alaska to the brink of an economic meltdown (Reference).

Yes Alaska’s own politicians are responsible for gross mismanagement of the state’s financial resources.  Federal withdrawal of land and natural resource access, when combined with Alaskan leaders’ failure to act responsibility have created what is today a perfect storm perhaps of the magnitude being faced at this moment by those in Texas dealing with more physical human and financial tragedy.

In Texas’ case, federal and state leaders are acting decisively and responsibly to deal with nature’s wrath.  In Alaska’s case, both federal and state leaders have acted out of greed and political expediency to cause a man-made, perfect storm.  By all accounts, Texas will successfully meet its challenge.  So far, Alaska is not repairing its stormy, spendthrift ways, though Zinke’s federal work by this new administration will help calm the waters, on the income side, over time.

Since hope springs eternal, we hope Alaska’s leaders will wake up to the severity of their challenge.   And if the Texas storm’s impact on refining capacity causes a temporary increase in oil prices benefitting Alaska, we hope such a reprieve will be used by the adults in our 49th state to put their house in order.

Hope is not a strategy.  Still, we must have hope … for we depend on those we have elected to observe a sacred trust to the state and nation.  -dh

PLF applauds administration’s monument review

Washington, D.C.; August 24, 2017: Today, the Department of Interior and Secretary Ryan Zinke announced the conclusion of an extensive, public review of national monuments.  The agency has not disclosed its recommendations for individual monuments, which will be made public after the president reviews them.  But the report leaves no doubt that past Antiquities Act abuse has been a serious problem and that President Trump has the authority to modify existing monument boundaries, including significant reductions in size if necessary or appropriate to comply with the text and purpose of the Act.

If the president follows through on recommendations to modify, reduce, or revoke any monument, he will be on solid legal footing.  Scholarshipfrom Pacific Legal Foundation’s Senior Fellow in Constitutional Law Todd Gaziano and UC Berkeley Law Professor John Yoo shows that the president has wide discretion to adjust the boundaries of existing national monuments — or revoke them entirely.  Shortly after their study was released, President Trump issued an executive order calling for Interior to review 20 years of Antiquities Act abuse and make recommendations whether to change any of the 27 recent monuments that cover more than 100,000 acres.

Gaziano’s and Yoo’s research confirms that the president has authority to significantly reduce or completely revoke prior monument designations, and he has the legal obligation to revoke a monument if its original designation violated the Act and there is no way to cure the violation short of revoking the monument.  News reports indicate that Interior has not recommended any monument revocations, but the president retains the authority to expand on Secretary Zinke’s recommendations with his proclamations under the Act.

The rise and rise of Antiquities Act abuse

Antiquities Act abuse has been on the rise in recent years, with presidents declaring more and ever-larger monuments in defiance of the Antiquities Act’s limit that designations must be “confined to the smallest area” compatible with protecting the object for which the monument is designated.  President Obama broke the record with the number of national monument proclamations he issued and the millions of acres he locked up within them.  In total, he added more than 550 million acres to monuments, more than all previous presidents combined.  The data leave no doubt that Presidents Clinton, Bush, and Obama engaged in unprecedented Antiquities Act abuse.

“The previous three presidents brazenly violated the text and spirit of the Antiquities Act,” said PLF Senior Attorney Jonathan Wood.  “They ignored Congress’ requirement that monuments be the smallest area compatible with protecting antiquities, often also ignoring local input and state concerns.  Presidents Bush and Obama also mocked the Antiquities Act’s limitation that monuments can only be designated on federal ‘land’ by designating huge ocean monuments.

“This review has been sorely needed and the Department of Interior’s clear endorsement of the president’s power to modify these monuments is a positive sign that it takes Antiquities Act abuse seriously,” Wood said.

President has legal authority to shrink or revoke national monuments

Gaziano said today that the president’s authority to act on Secretary Zinke’s recommendations to modify, shrink, or revoke prior monuments is not seriously in doubt.  “Some legal issues present equally strong arguments on both sides, but the president’s legal authority to modify, significantly reduce, or revoke prior national monuments is not one of them,” said Gaziano.  “The argument that the president lacks authority to modify national monuments is frivolous.  There is likely to be no dissent in the Supreme Court of the United States that the president has authority to both create and revoke national monuments.”

Although no president has revoked a national monument before, seven of the 16 presidents who have issued monument proclamations have shrunk existing monuments, sometimes dramatically.  According to Gaziano and Yoo’s study, President Taft reduced Navajo National Monument by nearly 90 percent in 1909.  Presidents Taft, Wilson, and Coolidge collectively removed more than 300,000 acres from the Mount Olympus monument.  That historic practice confirms that presidents have an implied power under the Antiquities Act to revoke or shrink monuments.

PLF Vice President for Litigation James S. Burling applauded the review.  “President Trump’s acknowledgment of his predecessors’ Antiquities Act abuse and decision to order a review of large monuments is a welcome sign to all who care about the rule of law,” he said.  “PLF has been at the vanguard of challenging illegal monuments and defending the president’s power to reconsider existing, abusive monuments.”

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