In December of 2016, President Barack Obama declared Bears Ears, that stunning part of southeastern Utah, a national monument, comprising nearly 1.4 million acres.
In December of 2017, President Donald Trump, who thinks of himself as “a real estate guy,” reduced the Bears Ears National Monument by 85 percent, to 202,000 acres.
In December of 2018, it is apt to ask whether Bears Ears has gotten bigger or smaller or stayed the same.
Answer: None of the above. The Trump reduction is wending its long tail through the federal courts like Dickens’ Jarndyce v. Jarndyce in “Bleak House.”
In the latest legal maneuvering, more than 100 Democrats from the House and Senate filed a brief in support of environmental and Native organizations that have sued the Trump administration, seeking to halt the reduction (it also entails similar actions at Grand Staircase-Escalante National Monument). They maintain the president does not have the authority to reduce a national monument.
Two weeks ago, the Justice Department submitted an unusual motion to the D.C. federal district court, asking it to deny the briefs from Democrats.
Legal experts consulted by The Washington Post said they could not recall another time when the Justice Department has opposed such a filing from Congress.
The whole case is unusual, and portentuous.
Obama, like presidents before him, was acting under the 1906 Antiquities Act.
The act was signed into law by President Theodore Roosevelt, who besides being an avid hunter, was the greatest conservationist to occupy the White House (although a case could be made, based on lands set aside, for his cousin, Franklin D. Roosevelt).
From the first use, creating Devils Tower National Monument in Wyoming, the act has been employed by presidents to create or enlarge monuments, some of which later became national parks, more than 100 times. Every president has used it except Nixon, Ford, Reagan and H.W. Bush.
Theodore Roosevelt used it, like a child with a new toy, to create 18 monuments, a record that stood until Obama used it 26 times in his last term.
The Supreme Court has repeatedly upheld this presidential power to create. Until now, however, no president has tried to undo a predecessor’s monument.
In their filing, the Democrats argue that the Antiquities Act gives the president the power to make a monument but not to unmake one. Only Congress, they say, can reduce a monument, by passing a law – which it is unlikely to do no matter how it is configured. Unmaking, which is still novel, probably takes a singular will. Or obstinacy.
This echoes the flap surrounding the effort by the Environmental Protection Agency under Trump to roll back vehicle emissions standards, which were advanced under Obama.
With states including Colorado advancing their own emissions standards to the Obama-era level, we may soon see them in federal court arguing that a president can advance, but cannot rollback, environmental regulations.
A year ago, Trump flew to Salt Lake City to hail his monument-reduction.
Democrats and environmentalists in D.C., he told a crowd, “don’t know your land, and truly, they don’t care for your land like you do. But from now on, that won’t matter.”
All that will matter, he implied, was the will of the executive to reduce what came before.
We are on virgin and slippery ground.