By David Abel, staff writer
Boston Globe news story
President Trump on Wednesday will issue a sweeping executive order to review as many as 40 national monument designations made by his three predecessors, an unprecedented move that could curtail or rescind their protected status.
It was unclear which areas would come under review, but the list could include monuments designated last year by President Barack Obama, including thousands of acres of pristine woods in northern Maine and sensitive marine habitats in the submerged canyons and mountains off Cape Cod.
Environmental groups immediately questioned the president’s legal authority to reverse a previous president’s designation, but the Trump administration has suggested that some of the restrictions on mining, logging, and other commercial and recreational activities have gone too far.
“The review is long overdue,” US Interior Secretary Ryan Zinke said at a White House news conference.
He said the review, to be completed within four months, would scrutinize monuments that have been established since 1996 and are larger than 100,000 acres. Maine Governor Paul LePage is urging Trump to include the Katahdin Woods and Waters National Monument even though it is actually 87,000 acres, slightly smaller than the stated threshold. Obama designated the area as parkland in August.
Zinke said the question of whether the president has the authority to rescind a national monument is “untested.” But it was “undisputed that the president has the authority to modify a monument,” he said.
Environmental advocates, however, insist the president lacks the authority to abolish a national monument and added that there are limits on how much he could modify their boundaries or protections.
For more than a century, Republican and Democratic presidents have relied on the 1906 Antiquities Act to declare more than 150 monuments in 31 states, protecting those lands and waters from commercial development and other activities.
Some of those designations have stirred controversy and efforts to overturn them. But no president has repealed a previous president’s monument, a power environmental advocates insist is reserved for Congress.
“The president has no power to unilaterally abolish a national monument under the Antiquities Act,” said Ani Kame’enui, director of government affairs for the National Parks Conservation Association, a nonprofit advocacy group based in Washington, D.C.
In an analysis by its lawyers, the group argues that presidents have only the powers granted to them by the Constitution and Congress. None of those powers is implied, they said.
They cited a 1938 paper by US Attorney General Homer Cummings, who was asked by President Franklin D. Roosevelt whether he could rescind the designation of the Castle Pinckney National Monument in South Carolina, which was used as a prisoner of war camp during the Civil War.
Cummings told the president he did not have such authority.
“The executive can no more destroy his own authorized work, without some other legislative sanction, than any other person can,” Cummings wrote. “To assert such a principle is to claim for the executive the power to repeal or alter an act of Congress at will.”
‘The president has no power to unilaterally abolish a national monument.’ Ani Kame’enui, National Parks Conservation Association
Congress later endorsed that view by enacting the Federal Policy and Management Act in 1976, which they said reserved to Congress the “authority to modify and revoke withdrawals for national monuments,” the group added.
Critics of recently created monuments argue that the president should have the power to revoke them.
“Those cold, timid souls who neither know victory or defeat’ argue that you, as president, cannot undo a national monument designation because it has never been done before,” LePage wrote Trump in February, quoting Theodore Roosevelt.
LePage was urging Trump to rescind the Obama administration’s designation of the Katahdin Woods, land donated to the federal government by the family of Roxanne Quimby, the cofounder of Burt’s Bees.
“They also never envisioned a President Trump,” wrote Le-Page, who plans to testify against the monument on Capitol Hill next week. “I strongly urge you to undo the designation and return the land to private ownership before economic damage occurs and traditional recreational pursuits are diminished.”
Lucas St. Clair, who led the campaign to establish the monument on behalf of his mother, told the Associated Press on Tuesday that LePage’s criticism was misguided. LePage this week disparaged the donated land as ‘‘cut over.’’
“To have someone who’s never been there say it’s a bunch of cut-over scrub land is doing a disservice to the landscape and the people who live there,’’ said St. Clair, calling the land “amazingly beautiful.”
Critics also say the language in the Antiquities Act is vague and that Trump’s executive order will probably lead to a court decision.
“No one can say definitely one way or another whether a president can undo an earlier president’s designation, because the issue has never been litigated,” said New Bedford Mayor Jon Mitchell, who has opposed Obama’s closing of 5,000 square miles of seabed to fishing by designating the Northeast Canyons and Seamounts Marine National Monument, about 130 miles off Cape Cod.
Mitchell said there is precedent for presidents to change the boundaries and activities within a national monument. President Woodrow Wilson reduced by half the size of the Mount Olympus National Monument in Washington, created by President Theodore Roosevelt.
“Intuitively, one would assume that if the president can establish a monument, the president can undo an earlier establishment,” he said.
Andrew Minkiewicz, an attorney at the Fisheries Survival Fund in Washington, D.C., said the president wouldn’t have to rescind Obama’s designation to address the concerns of the fishing industry.
“With the stroke of a pen, he could just say there’s no longer a ban on commercial fishing,” he said.
But environmental groups vowed to fight any such action.
“There is very limited precedent for some modifications,” said Peter Shelley, senior counsel at the Conservation Law Foundation in Boston. “We see this executive order as a slow-motion attack on America’s heritage that has the potential to undermine one of the nation’s most important conservation tools.”
Cathy Johnson, forests and wildlife project director for the Natural Resources Council of Maine, said her organization and others would fight any efforts to retract the federal protections of Katahdin Woods.
“It would be an outrage to lose this monument,” she said. “It is a spectacularly beautiful and culturally significant area that deserves to be protected for all Americans.”
