MONUMENTAL DECISIONS: ONE-WAY LEVERS TOWARDS

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[125]

PRESERVATION IN THE ANTIQUITIES ACT AND OUTER

CONTINENTAL SHELF LANDS ACT

AYNI FOLEY HEIN*

This Article seeks to answer a key question: Do the

congressionally delegated powers of the President of the United States

to withdraw offshore areas from mineral leasing and to designate

national monuments imply that a president has the power to rescind or

diminish such designations made by prior presidents? It answers in the

negative, consistent with the enduring national narrative that public

lands should be regulated according to principles of democratic

decision making, especially where important public trust interests are

at stake. The powers conferred to the President in the Antiquities Act

of 1906 and section 12(a) of the Outer Continental Shelf Lands Act

(OCSLA) operate in one direction only: towards preservation.

Presidents do not have the authority to rescind or diminish national

monument designations or to restore permanently withdrawn areas to

offshore leasing. Congress retains this authority through its plenary

power over public lands set forth in the Property Clause of the U.S.

Constitution.

This Article fills a gap in the existing literature by identifying

common threads running through OCSLA section 12(a), the Antiquities

Act, and the common law public trust doctrine. Longstanding public

trust doctrine jurisprudence reflects the principle that important public

land decision making should be done by legislatures, through their

deliberative and democratic process, or pursuant to explicit legislature

authority. The doctrine provides important context for a history of

public lands jurisprudence in which courts demand greater justification

for actions diminishing public lands than for protecting those same

lands. The one-way lever structure of the Antiquities Act and OCSLA

section 12(a) are consistent with this historical framework,



* Policy Director, Institute for Policy Integrity, New York University School of Law, and Adjunct

Professor of Law, New York University School of Law. The author wishes to thank Marna

McDermott, Richard Revesz, and Dan Farber for thoughtful comments, as well as Michael

Gerrard and the participants of the 2017 Sabin Colloquium on Innovative Environmental Law

Scholarship at Columbia Law School for feedback on an early outline of this Article. John

Muller provided exceptional research assistance. This article is for William, a great explorer.

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126 ENVIRONMENTAL LAW [Vol. 48:125

empowering the President to take unencumbered action to protect

natural resources, but leaving the more “monumental” question of

whether to remove such public land protections up to Congress, alone.

Furthermore, this Article argues that the public trust doctrine

should serve as a background principle or canon of interpretation for

public land statutes. Where, as here, a statute is silent as to whether the

President can diminish public land protections, courts should presume

that Congress retained such power exclusively for itself.

INTRODUCTION........................................................................................... 126

II.

OF MONUMENTS AND MEN: PAST DESIGNATIONS AND PRESENT

CONTROVERSY ........................................................................................... 132

A. The Outer Continental Shelf and OCSLA Section 12(a)

Withdrawals

..................................................................................... 132

B. National Monument Designations Pursuant to the

Antiquities Act .................................................................................

137

III.

THE CONSTITUTIONAL AND STATUTORY FRAMEWORK ............................... 141

A. The Property Clause: Congress as Caretaker of Public Lands ..

141

B. OCSLA Section 12(a): Plain Text, Legislative History, and

Contemporaneous Statutes

............................................................ 143

C. The Antiquities Act: Plain Text, Legislative History, and

Contemporaneous Statutes ............................................................

146

IV.

THE PUBLIC TRUST DOCTRINE: PROTECTING PUBLIC LANDS THROUGH

DEMOCRATIC DECISION MAKING ............................................................... 148

A. The Public Trust Doctrine in Roman and English Common

Law ....................................................................................................

150

B. The Public Trust Doctrine in the United States

........................... 151

C. The Public Trust Doctrine as a Theory of Public Land

Management Best Effectuated by Legislatures

........................... 153

THE PUBLIC TRUST DOCTRINE AS A CANON OF STATUTORY

INTERPRETATION FOR PUBLIC LAND STATUTES ......................................... 157

VI.

THE WISDOM OF ONE-WAY EXECUTIVE BRANCH LEVERS IN THE

ANTIQUITIES ACT AND OCSLA SECTION 12(A) ......................................... 161

VII.

CONCLUSION .............................................................................................. 165

INTRODUCTION

The Antiquities Act of 1906

is one of the most important conservation

tools available to Presidents of the United States. Frequently invoked to

preserve cultural, historical, scientifically valuable, and scenic areas on

federal lands, sixteen presidents have designated 157 national monuments



Pub. L. No. 59-209, 34 Stat. 225 (codified as amended at 54 U.S.C. §§ 320301–320303

(Supp. II 2015)).

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2018] MONUMENTAL DECISIONS 127

under Antiquities Act authority, totaling more than 800 million acres.

While

President Bill Clinton was known for his prodigious use of Antiquities Act

authority, President Barack Obama surpassed Clinton and well-known

conservationist President Theodore Roosevelt by protecting more than 550

million acres of federal lands and waters pursuant to Antiquities Act

authority.

President Obama also availed himself of a less-utilized federal

statutory provision, section 12(a) of the Outer Continental Shelf Lands Act

(OCSLA), to withdraw several large areas of the Outer Continental Shelf

from future mineral leasing, indefinitely.

While President Obama’s preservation agenda was largely applauded by

environmentalists, it was criticized by some opponents as a “federal land

grab.”

Framing these actions as a “federal land grab” misstates the issue, as

the land in question was owned by the federal government when it was

designated as a national monument or withdrawn from mineral leasing.

From a law and policy perspective, the more interesting and pressing

questions concern not the ownership of the land but the permissible bounds

of executive power over this federal land. The durability of presidential

preservation decisions—specifically, actions withdrawing offshore areas

from future mineral leasing and designating certain federal lands as national

monuments—has received limited attention in the courts and in academic

literature, until now. President Obama’s multiple, large-scale designations,

which in some cases attracted robust state and local opposition,

and

President Trump’s unprecedented actions purporting to undo these

designations, has drawn increased attention to this executive authority.

On April 26, 2017, President Trump signed an executive order directing

the Secretary of the Department of the Interior, Ryan Zinke, to review



See

Ani Kame’enui,

Monuments Protected Under the Antiquities Act

NAT’L PARKS

CONSERVATION ASS’N (Jan. 13, 2017), https://perma.cc/9VC4-8LSQ;

Archeology Program

, NAT’L

PARK SERV., https://perma.cc/37UU-VQEE (last updated May 8, 2017).

See

Juliet Eilperin & Brady Dennis,

With New Monuments in Nevada, Utah, Obama Adds

to His Environmental Legacy

, WASH. POST (Dec. 28, 2016), https://perma.cc/8FV2-KBRU; Dana

Varinsky,

Here’s Every Piece of Land Obama Has Put Under Protection During His Presidency

US. INSIDER (Jan. 16, 2017), https://perma.cc/83SR-CVUW.

43 U.S.C. §§ 1331–1356a (2012).

Memorandum on Withdrawal of Certain Portions of the United States Arctic Outer

Continental Shelf from Mineral Leasing, 2016 D

AILY COMP. PRES. DOC. 1 (Dec. 20, 2016)

[hereinafter Arctic Offshore Drilling Rule]; Memorandum on Withdrawal of Certain Areas of the

United States Outer Continental Shelf Offshore Alaska from Leasing Disposition, 2015 D

AILY

COMP. PRES. DOC. 1 (Jan. 27, 2015) [hereinafter Arctic Withdrawal Rule].

Alessandra Potenza,

Trump Signs Executive Order That Threatens National Monuments

ERGE (Apr. 26, 2017), https://perma.cc/TZC2-B5GY (“Trump said the executive order would

end an abuse of power that’s resulted in a ‘massive federal land grab.’”).

National monuments may be reserved only upon the lands “owned or controlled by the

Federal Government.” Antiquities Act of 1906, 54 U.S.C. § 320301(a) (Supp. II 2015). And, the

OCSLA applies to offshore lands and waters under federal jurisdiction, only. 43 U.S.C. §§ 1331,

1333(a) (2012).

For instance, the Bears Ears National Monument designation was opposed by State of

Utah elected officials and the congressional delegation. Coral Davenport,

Obama Designates

Two New National Monuments, Protecting 1.65 Million Acres

, N.Y. TIMES (Dec. 28, 2016),

https://perma.cc/S8E6-XP3Y.

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128 ENVIRONMENTAL LAW [Vol. 48:125

national monuments designated by previous presidents under the Antiquities

Act, and assess whether to rescind or reduce the boundaries of some of

these national monuments.

In December 2017, President Trump issued two

proclamations, downsizing Bears Ears National Monument by 85% and

Grand Staircase-Escalante National Monument by nearly 50%.

Native

American tribes and conservation groups sued, challenging these actions

under the Antiquities Act, the U.S. Constitution, and the Administrative

Procedure Act

(APA).

On April 28, 2017, President Trump issued a

separate executive order, rescinding President Obama’s offshore leasing

withdrawals made pursuant to OCSLA section 12(a).

Environmental groups

sued, challenging the legality of the offshore leasing executive order.

The key question presented by both the OCSLA and Antiquities Act

controversies is not whether these federal lands can ever be converted to

other uses; but whether it would take an act of Congress to rescind or

diminish these protective designations, as opposed to a mere flick of the

President’s pen. This question, with respect to both statutes, is a matter of

first impression. No court has ever decided whether a president can rescind

or diminish an existing national monument designation or reverse an

offshore leasing withdrawal that was established “for a time period without

specific expiration.”

This Article argues that both OCSLA section 12(a) and the Antiquities

Act are structured such that protected offshore areas and national

monuments endure across presidential administrations, and that Congress,

alone, has the power to rescind or modify these designations. Existing

scholarship cogently makes the case that based on its plain language and

legislative history, the Antiquities Act grants a one-direction power to the

President to designate national monuments, but not to rescind or diminish

existing monuments.

This Article does not repeat the detailed and



Exec. Order No. 13,792, 82 Fed. Reg. 20,429, 20,429 (May 1, 2017) (signed April 26, 2017).

See

Proclamation No. 9681, 82 Fed. Reg. 58,081, 58,087 (Dec. 8, 2017) (signed December

4, 2017); Proclamation No. 9682, 82 Fed. Reg. 58,089, 58,096 (Dec. 8, 2017) (signed December 4,

2017);

see also

Nicholas Bryner et al.,

President Trump’s National Monument Rollback Is Illegal

and Likely To Be Reversed in Court

, CONVERSATION

(Dec. 4, 2017), https://perma.cc/T73Q-SLKT.

5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).

Complaint for Declaratory & Injunctive Relief, Nat. Res. Def. Council v. Trump, No. 1:17-

cv-02606 (D.D.C. filed Dec. 7, 2017); Complaint for Injunctive & Declaratory Relief, Hopi Tribe

v. Trump, No. 1:17-cv-02590 (D.D.C. filed Dec. 4, 2017).

Exec. Order No. 13,795, 82 Fed. Reg. 20,815, 20,815–16 (May 3, 2017) (signed April 28,

2017).

Complaint for Declaratory & Injunctive Relief at 2, League of Conservation Voters v.

Trump, No. 3:17-cv-00101-SLG (D. Alaska filed May 3, 2017) (alleging that President Trump’s

executive order violates the Constitution and is unlawful because the OCSLA provides

presidents with the power to protect territory, only, and not to overturn those protections and

increase development).

Arctic Offshore Drilling Rule,

supra

note 5;

see

ALEXANDRA M. WYATT, CONG. RESEARCH

SERV., R44687, ANTIQUITIES ACT: SCOPE OF AUTHORITY FOR MODIFICATION OF NATIONAL

MONUMENTS 3 (2016), https://perma.cc/6YKX-EGWC.

WYATT,

supra

note 15, at 4;

see, e.g.

, Mark Squillace et al.,

Presidents Lack the Authority

to Abolish or Diminish National Monuments

, 103 VA. L. REV. ONLINE 55, 70–71 (2017)

[hereinafter Squillace et al.,

Presidents Lack Authority

];

see also

ROBERT ROSENBAUM ET AL.,

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2018] MONUMENTAL DECISIONS 129

persuasive analysis contained in other articles, but it builds upon this

scholarship and examines the plain text and legislative history of a similar

provision, OCSLA section 12(a). Furthermore, this Article illuminates how

the restraints imposed on the executive branch by both OCSLA and the

Antiquities Act—in the form of one-way levers to protect special places, but

not to rescind those protections—are not novel. Rather, common law public

trust doctrine jurisprudence developed with a distinction between the role

of legislatures and non-legislative actors with respect to public land

protections. As such, the longstanding public trust doctrine should serve as

a background principle to frame the interpretation and understanding of

OCSLA section 12(a) and the Antiquities Act.

First, the constitutional and statutory framework for OCSLA section

12(a) and the Antiquities Act strongly support the interpretation that

Congress granted the President a one-way power to preserve public lands,

but not to remove those protections. A limited role for the executive branch

in public lands decision making is embedded in the Property Clause of the

U.S. Constitution, which vests Congress with plenary authority over public

lands.

While Congress explicitly delegated to the President the power to

designate national monuments and to withdraw areas from offshore leasing

in these two statutes, it did not explicitly delegate the power to lift these

protections once in place, instead reserving the authority to undo such

protections for itself. The plain text and legislative history of the Antiquities

Act, as well as attorney general opinions interpreting the provision, support

the interpretation that it confers a one-way power to the President.

This

structure maintains the traditional separation of powers between Congress

and the President with respect to public lands, vesting Congress, the most

democratic of the three branches, with decision-making power over our

widely shared public lands.

Second, interpreting OCSLA section 12(a) and the Antiquities Act to

confer a one-direction power to the President is consistent with the

enduring national narrative that public lands should be managed and

regulated according to principles of democratic decision making, especially

where important public trust interests are at stake. In several U.S. states, a

long line of common law public trust jurisprudence elucidates the principle

that government actions diminishing, impairing, or alienating public trust

lands, such as the seabed, tidelands, and public parks,

should be made

through a democratic, deliberative process, such as legislative action, or at

least through explicitly delegated authority.

This is especially so when an



ARNOLD & PORTER KAYE SCHOLER, THE PRESIDENT HAS NO POWER UNILATERALLY TO ABOLISH OR

MATERIALLY CHANGE A NATIONAL MONUMENT DESIGNATION UNDER THE ANTIQUITIES ACT OF 1906,

at 9 (2017), https://perma.cc/662C-TXF7.

See

U.S. CONST. art. IV § 3, cl. 2.

See, e.g.

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 56–59.

Certain states, like New York, extend the public trust doctrine to public parks.

See

discussion

infra

Part IV.C.

See

Joseph L. Sax,

The Public Trust Doctrine in Natural Resource Law: Effective Judicial

Intervention

, 68 MICH. L. REV. 471, 485–91 (1970) [hereinafter Sax,

The Public Trust Doctrine

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130 ENVIRONMENTAL LAW [Vol. 48:125

action would open public trust lands to exploitation or development by

private parties. The theory underlying this principle is that legislatures

answer to a broader constituency than municipal actors and undertake a

more deliberative, open process that guards against rash, ill-informed, or

corrupt decisions with respect to public lands and resources.

OCSLA

section 12(a) and the Antiquities Act, in effect, place an analogous

procedural restraint on the President by reserving to Congress the authority

to undo protected land status.

Beyond providing an illuminating analogy, the public trust doctrine

should serve as a background principle or canon of statutory construction

for public land statutes. As a canon of statutory interpretation, the public

trust doctrine would function as a “clear statement” rule, requiring Congress

to be explicit when granting a power to act contrary to public trust

principles. Thus, in the absence of a “clear statement” by Congress providing

a multi-directional power to the President to both designate and remove

public land protections, courts should presume that Congress retained this

power for itself.

This Article also serves, in part, to refute the arguments made by John

Yoo and Todd Gaziano that the conventional relationship between the

executive branch and Congress supports the argument that President Trump

“has the right to reverse national monuments created by previous presidents

without an act of Congress.”

In their view, presidents are free to volley

national monument status back and forth, according to their opinion as to

what qualifies as an object of “historic or scientific interest.”

But this

argument overstates the amount of power delegated to the President in the

Antiquities Act. Further, their arguments ignore relevant legislative history

and the overarching purpose behind these two statutory provisions: to

protect certain lands and resources for the benefit of current and future

generations.

The structures of the Antiquities Act and OCSLA section 12(a) impose

restraints upon the executive branch in accordance with the constitutional

separation of powers and a long line of laws and judicial decisions

recognizing a system of checks and balances for public land decision

making.

These statutes reflect the wisdom of their drafters in delegating a

one-way executive power to preserve public lands, leaving the more



See id.

at 490–92;

see also

Carol M. Rose,

Joseph Sax and the Idea of the Public Trust

, 25

COLOGY L.Q. 351, 355 (1998) [hereinafter Rose,

Joseph Sax

Todd Gaziano & John Yoo, Opinion,

It’s Magical Legal Thinking To Say Trump Can’t

Reverse Obama’s National Monuments

, L.A. TIMES (July 6, 2017), https://perma.cc/KS9T-GKGA

[hereinafter Gaziano & Yoo,

Magical Legal Thinking

];

see also

JOHN YOO & TODD GAZIANO, AM.

ENTER. INST., PRESIDENTIAL AUTHORITY TO REVOKE OR REDUCE NATIONAL MONUMENT

DESIGNATIONS (2017), https://perma.cc/NG4K-DK9Z [hereinafter YOO & GAZIANO, PRESIDENTIAL

AUTHORITY].

YOO & GAZIANO, PRESIDENTIAL AUTHORITY,

supra

note 22, at 13–14;

see

Antiquities Act of

1906, 54 U.S.C. § 320301 (Supp. II 2015) (“The President may . . . declare by public proclamation

historic landmarks, historic and prehistoric structures, and other objects of historic or scientific

interest . . . to be national monuments.”).

See

discussion

infra

Part III.

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2018] MONUMENTAL DECISIONS 131

consequential decision of whether to lift such protections up to Congress,

alone.

This Article proceeds as follows. Part II sets the stage by highlighting

the national monument and OCSLA section 12(a) designations made by

President Obama and some of his predecessors, and the more recent actions

by the Trump Administration purporting to undo them. It shines a light on

what is at stake both on the ground, in terms of protected lands, and from a

legal perspective, in defining the bounds of delegated executive power over

public lands.

Part III describes the constitutional and statutory framework for

OCSLA section 12(a) and the Antiquities Act. In both provisions, Congress

delegated specific powers to the executive branch. A careful reading of

these statutory provisions reveals that Congress granted to the President a

one-way power to preserve federal lands in both provisions, and reserved

for itself the authority to rescind or modify these reservations once in place,

pursuant to its plenary authority over public lands set forth in the Property

Clause of the U.S. Constitution.

Part IV introduces the public trust doctrine, including its Roman and

English common law origins. Common resources like the sea, tidelands, and

submerged lands beneath navigable waters have been recognized as public

trust resources for centuries.

The public trust doctrine also has a

procedural component. In the United States, the doctrine has long been

interpreted by several states to limit actions by non-legislative actors that

threaten to diminish public trust resources, such as allowing non-public

trust uses within public trust lands, or transferring public trust resources to

private parties.

The public trust doctrine supports the interpretation of

OCSLA section 12(a) and the Antiquities Act as conferring a one-way power

to the President, consistent with the long-standing precept that public lands

should be protected and managed according to principles of democratic

decision making.

Part V argues that the public trust doctrine should serve as a canon of

statutory interpretation to aid the interpretation of public land statutes,

including the Antiquities Act and OCSLA section 12(a).

The doctrine can

serve as an effective canon of statutory interpretation for public land

statutes, particularly as a “clear statement” canon requiring Congress to be

explicit if it intends to delegate authority to remove public land

protections.

The doctrine would thus frame the inquiry with a presumption

of conservation in the public interest. So applied, the canon would confirm

that these two statutes confer a one-direction power to the President,

consistent with their plain text, legislative history, and relevant Attorney

General opinions.



Sax,

The Public Trust Doctrine

supra

note 20, at 524 n.158.

See id.

at 49192, 494.

See

Charles F. Wilkinson,

The Public Trust Doctrine in Public Land Law

, 14 U.C. DAVIS L.

REV. 269, 311–13 (1980) [hereinafter Wilkinson,

The Public Trust

];

see also

William D. Araiza,

The Public Trust Doctrine as an Interpretive Canon

, 45 U.C. DAVIS L. REV. 693, 72123 (2012).

Araiza,

supra

note 27, at 721.

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132 ENVIRONMENTAL LAW [Vol. 48:125

Part VI analyzes the common threads connecting the Antiquities Act,

OCSLA, and the public trust doctrine. It concludes that the Antiquities Act

and OCSLA section 12(a) reflect the wisdom of their drafters in conferring a

one-way presidential power to preserve federal lands. While allowing

unencumbered presidential actions to protect special places and natural

resources, they reserve to Congress the more “monumental” power to

modify or abolish national monuments and to return withdrawn lands to

disposition by leasing.

II.

OF MONUMENTS AND MEN: PAST DESIGNATIONS AND PRESENT CONTROVERSY

President Obama and many of his predecessors invoked the Antiquities

Act and OCSLA section 12(a) to designate national monuments and offshore

protected areas, respectively, for environmental, historical, and cultural

reasons.

The vast majority of these designations were intended to endure

across presidential administrations, with the exception of certain time-

limited offshore leasing moratoria areas, as evidenced in the proclamations

announcing their creation.

No president has ever reversed a withdrawal of

Outer Continental Shelf areas from oil and gas leasing, other than one with

an express end date, prior to the Trump Administration. And no president

has ever rescinded or reduced the boundaries of an existing national

monument designated by a prior president subsequent to the passage of the

Federal Land Policy and Management Act,

which made clear that such

actions are reserved to Congress, alone.

In both respects, the Trump

Administration’s actions removing protected public land status wade into

legally untested waters.

A. The Outer Continental Shelf and OCSLA Section 12(a) Withdrawals

The Outer Continental Shelf Lands Act (OCSLA) governs all activities

on the Outer Continental Shelf, including mineral leasing. Section 12(a) of

OCSLA has been used by six presidents spanning sixty-seven years,

including to withdraw as much as several hundred million acres at a time.

Section 12(a) withdrawals can be time-limited, or, as President Obama and

other presidents have used the provision, “for a time period without specific

expiration.”

President Trump’s 2017 executive order rescinding President



See

John Freemuth & Mackenzie Case,

What History Tells Us About Obama’s Antiquities

Act Legacy

, LAW360 (Nov. 22, 2016), https://perma.cc/KY8T-FT8N.

See, e.g.

, Proclamation No. 9558, 3 C.F.R. § 402 (2017); Proclamation No. 9234, 3 C.F.R.

§ 21 (2016) (“The management plan shall ensure that the monument fulfills the following

purposes for the benefit of present and future generations . . . .”).

Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701–1787 (2012).

See

discussion

infra

Parts II.B and III.C.

NAT. RES. DEF. COUNCIL & EARTHJUSTICE, BRIEFER ON PRESIDENTIAL WITHDRAWAL UNDER

OCSLA SEC. 12(A), at i (2016), https://perma.cc/2Z3X-F2H9.

E.g.

, Arctic Offshore Drilling Rule,

supra

note 5; Arctic Withdrawal Rule,

supra

note 5.

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2018] MONUMENTAL DECISIONS 133

Obama’s offshore reservations is an unprecedented action with the intended

effect of opening these areas to oil and natural gas development.

The Outer Continental Shelf of the United States is the submerged land,

subsoil, and seabed lying within exclusive federal jurisdiction.

The United

States asserts sovereignty over the Outer Continental Shelf within its 200-

mile “exclusive economic zone.”

Governance of offshore minerals and

activities is split between states and the federal government. Generally,

states have primary authority in the three-nautical-mile area extending from

their coasts.

The federal government has exclusive jurisdiction over the

remaining 197 nautical miles of the Outer Continental Shelf within its

exclusive economic zone, an area almost one-tenth that of the continental

United States.

The Outer Continental Shelf contains abundant oil, natural gas, and

other mineral resources. Federal offshore oil reserves represent about 11%

of all oil reserves in the United States.

Developing and managing these

fossil fuel reserves was a primary motivation behind the passage of OCLSA

in 1953.

In addition to providing valuable energy resources, oil and gas activities

conducted on the Outer Continental Shelf have the potential to affect the sea

floor, water, and coastal areas. One of the greatest risks of offshore oil and

gas development is the risk of an oil spill, with its attendant effects on

wildlife, fishing stocks, water quality, and coastal economies.

Aside from



See generally

Exec. Order No. 13,792, 82 Fed. Reg. 20,429 (May 1, 2017).

Outer Continental Shelf

, BUREAU OCEAN ENERGY MGMT., https://perma.cc/8NXR-DTND

(last visited Jan. 27, 2018);

see also

OCSLA, 43 U.S.C. §§ 1331(a), 1333(a)(3) (2012).

Proclamation No. 5030, 3 C.F.R. § 22 (1984),

reprinted as amended in

16 U.S.C. § 1453

(2012).

Three nautical miles is equivalent to 3.452 miles or 5.556 kilometers. Texas and the Gulf

Coast of Florida have jurisdiction extending approximately nine nautical miles seaward from

their coastlines.

See Outer Continental Shelf

supra

note 36.

See

Warren M. Christopher,

The Outer Continental Shelf Lands Act: Key to A New

Frontier

, 6 STAN. L. REV. 23, 23 (1953);

Outer Continental Shelf

supra

note 36.

MARC HUMPHRIES, CONG. RESEARCH SERV., R42432, U.S. CRUDE OIL AND NATURAL GAS

PRODUCTION IN FEDERAL AND NONFEDERAL AREAS 2 (2016). “Taken together, U.S. federal oil

reserves equal about 24% of all U.S. crude oil (and condensate) reserves, which are estimated at

39.9 billion barrels, according to the [United States Energy Information Administration]

”

Id.

[T]here are an estimated 5.3 billion barrels of proved oil reserves located on federal

acreage onshore and . . . 4.3 billion barrels of proved reserves offshore.

. . . .

U.S. dry gas proved reserves are estimated at about 388.8 trillion cubic feet (tcf) . . . ,

of which the federal share is about 22% (69 tcf onshore, 16 tcf offshore).

Id.

at 2, 4.

See

Robin Kundis Craig,

Treating Offshore Submerged Lands as Public Lands: A

Historical Perspective

, 34 PUB. LAND & RESOURCES L. REV. 51, 53 (2013).

BUREAU OF OCEAN ENERGY MGMT., 2017–2022 OUTER CONTINENTAL SHELF OIL AND GAS

LEASING PROPOSED FINAL PROGRAM 2-2 (2016), https://perma.cc/RW8W-N5BT;

see also

Arctic

Offshore Drilling Rule,

supra

note 5 (citing as justification for the withdrawal “the unique

logistical, operational, safety, and scientific challenges and risks of oil extraction and spill

response in these Arctic waters”).

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134 ENVIRONMENTAL LAW [Vol. 48:125

the catastrophic risk of an oil spill, more common effects include discharge

of oil, wastewater, and debris; air pollution, including greenhouse gas

emissions; infrastructure impacts such as pipeline trenching on the seafloor;

and increased vessel traffic to and from production and exploration sites—

all of which can negatively affect aquatic wildlife and ecosystems.

Congress was mindful of protecting the environmental resources of the

Outer Continental Shelf when it passed OCSLA in 1953. OCSLA provides that

the Secretary of the Interior can “at any time prescribe and amend such

rules and regulations as he determines to be necessary and proper in order

to provide for the prevention of waste and conservation of the natural

resources of the Outer Continental Shelf, and the protection of correlative

rights therein.”

In addition, Congress delegated separate authority to the

President in OCSLA section 12(a), allowing him or her to “withdraw from

disposition any of the unleased lands of the outer Continental Shelf.”

From the beginning, presidents invoked section 12(a) in the name of

environmental protection and conservation, and signaled that certain

withdrawals were intended to be permanent. In 1960, President Eisenhower

first used OCSLA section 12(a) to withdraw offshore areas to create the Key

Largo Coral Reef Preserve, “for the purpose of preserving the scenic and

scientific values of this area unimpaired for the benefit of future

generations.”

In 1969, the Secretary of the Interior, presumably acting

pursuant to authority delegated by the President, invoked OCSLA section

12(a) following the Santa Barbara oil spill to withdraw 21,000 acres of

unleased offshore lands and designate them as an “Ecological Preserve.”

Other presidents have withdrawn offshore areas from oil and gas

leasing pursuant to OCSLA section 12(a), many of which covered large

areas. In 1990, President George H.W. Bush removed a number of areas from

potential leasing for a set time period,

and in 1998, President Clinton

extended this order through 2012.

In addition, President Clinton withdrew

all of the areas of the Outer Continental Shelf designated as marine

sanctuaries under the Marine Protection, Research, and Sanctuaries Act of

1972

from disposition by leasing for a time period without specific



See

BUREAU OF OCEAN ENERGY MGMT.,

supra

note 42, at S-9.

OCSLA, 43 U.S.C. § 1334(a) (2012).

Id.

§ 1341(a).

Proclamation No. 3339, 3 C.F.R. § 20 (Supp. 1960) (signed March 19, 1960),

reprinted in

54 U.S.C. § 320101 (Supp. II 2015).

Establishment of Santa Barbara Channel Ecological Preserve, 34 Fed. Reg. 5655, 5655

(Mar. 26, 1969).

Statement on Outer Continental Shelf Oil and Gas Development, 26 WEEKLY COMP. PRES.

DOC. 1006 (June 26, 1990).

Memorandum on Withdrawal of Certain Areas of the United States Outer Continental

Shelf from Leasing Disposition,

34 WEEKLY COMP. PRES. DOC. 1111 (June 12, 1998) [hereinafter

Clinton’s Withdrawal].

Pub. L. No. 92-532, 86 Stat. 1052 (codified as amended in scattered sections of 16 and 33

U.S.C.).

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2018] MONUMENTAL DECISIONS 135

expiration.

In total, President Clinton’s section 12(a) reservations covered

300 million acres.

President George W. Bush eliminated President Clinton’s

time-limited reservation, but left in place the designations that were not

time-limited.

The legality of this action was never tested in court.

On January 27, 2015, President Obama, acting pursuant to the authority

vested in him by Congress through OCSLA section 12(a), withdrew areas in

the Arctic’s Beaufort and Chukchi Seas from oil and gas leasing “for a time

period without specific expiration.”

On December 20, 2016, President

Obama withdrew additional areas of the U.S. Arctic Ocean and Atlantic

Ocean from future oil and gas “leasing for a time period without specific

expiration.”

In total, President Obama’s Arctic reservations protected an

additional 115 million offshore acres from oil and gas leasing.

In his

proclamations announcing these actions, President Obama cited the

importance of these areas to “subsistence use by Alaska Natives as well as

for marine mammals, other wildlife, and wildlife habitat.”

He also stated his

intention “to ensure that the unique resources of these areas remain

available for future generations.”

In the Atlantic, President Obama

withdrew thirty-one offshore canyons and canyon complexes comprising 3.8

million acres.

The President noted “the critical importance of canyons

along the edge of the Atlantic continental shelf for marine mammals, deep

water corals, other wildlife, and wildlife habitat,” and the need “to ensure

that the unique resources associated with these canyons remain available

for future generations.”

While environmental preservation is not the only permissible motive for

withdrawal under section 12(a), every exercise of the clause to date has

been for a preservation-related purpose.

OCSLA section 12(a) prohibits oil

and gas leasing in withdrawn areas. As a practical matter, withdrawing

offshore areas from mineral leasing through OCSLA section 12(a) helps to

protect marine wildlife and habitat, and provide long-term opportunities for



President Clinton’s withdrawals added the language: “Each of these withdrawals is

subject to revocation by the President in the interest of national security.” Clinton’s Withdrawal,

supra

note 49

NAT. RES. DEF. COUNCIL & EARTHJUSTICE,

supra

note 33, at i.

Memorandum on Modification of the Withdrawal of Areas of the United States Outer

Continental Shelf from Leasing Disposition, 44 W

EEKLY COMP. PRES. DOC. 986 (July 14, 2008).

Arctic Withdrawal Rule,

supra

note 5.

Arctic Offshore Drilling Rule,

supra

note 5.

Press Release, U.S. Dep’t of the Interior, Secretary Jewell Applauds President’s

Withdrawal of Atlantic and Arctic Ocean Areas from Future Oil and Gas Leasing (Dec. 20, 2016),

https://perma.cc/QQ5B-E2VN.

See

Arctic Offshore Drilling Rule,

supra

note 5.

Id.

U.S. DEP’T OF THE INTERIOR, FACT SHEET: UNIQUE ATLANTIC CANYONS PROTECTED FROM OIL

AND

GAS ACTIVITY, https://perma.cc/6NJG-GZ3D (last visited Jan. 27, 2018).

Memorandum on Withdrawal of Certain Areas off the Atlantic Coast on the Outer

Continental Shelf from Mineral Leasing, 2016 D

AILY COMP. PRES. DOC. 1 (Dec. 20, 2016).

See generally

NAT. RES. DEF. COUNCIL & EARTHJUSTICE,

supra

note 33.

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136 ENVIRONMENTAL LAW [Vol. 48:125

research, recreation, and exploration.

The risk of catastrophic oil spills in

withdrawn areas is greatly reduced. And while the precise effects depend on

the global energy market, withholding large offshore areas from fossil fuel

leasing and development has the potential to reduce aggregate greenhouse

gas emissions.

On April 28, 2017, President Trump issued an executive order

rescinding President Obama’s withdrawals made pursuant to OCSLA section

12(a).

No president has ever rescinded a section 12(a) withdrawal made for

“a time period without specific expiration.” The executive order was

challenged in court by environmental groups, as beyond the President’s

authority.

In January 2018, the Department of the Interior released a new

draft program for offshore drilling on the Outer Continental Shelf, to replace

the program prepared during the Obama Administration.

The Trump

Administration’s draft program proposes to make over 90% of federal

offshore lands available for future exploration and development, and to hold

the largest number of lease sales in U.S. history.

This is an enormous

expansion—the current program offers roughly 6% of available offshore

acreage for lease—and it contemplates leasing in areas previously

withdrawn by President Obama pursuant to his section 12(a) authority.

Governors and members of Congress from several coastal states, on both

sides of the aisle, have voiced their opposition to the proposal, as coastal

states dependent on tourism and fishing face serious risks from offshore oil

spills.



BUREAU OF OCEAN ENERGY MGMT.,

supra

note 42, at xi (“The greatest concern related to

oil and gas development . . . is that of an accidental oil spill.”).

See, e.g.

, Peter Erickson,

Final Obama Administration Analysis Shows Expanding Oil

Supply Increases CO2

, STOCKHOLM ENV’T INST. (Jan. 30, 2017), https://perma.cc/A3NH-3KBN.

See generally

Exec. Order No. 13,795, 82 Fed. Reg. 20,815 (May 3, 2017).

See generally

Complaint for Declaratory & Injunctive Relief, League of Conservation

Voters v. Trump, No. 3:17-cv-00101-SLG (D. Alaska filed May 3, 2017).

Preparation of a new five-year leasing program also requires compliance with the

National Environmental Policy Act of 1969 (NEPA). 43 U.S.C. § 1344(b)(3) (2012). The existing

program, prepared by the Obama Administration, does not contain any scheduled lease sales in

the Atlantic and only one lease sale in a small area of the Arctic that has a history of offshore oil

production. B

UREAU OF OCEAN ENERGY MGMT.,

supra

note 42, at S-7, 4-11 & tbl.4-3.

Press Release, U.S. Dep’t of the Interior, Secretary Zinke Announces Plan for Unleashing

America’s Offshore Oil and Gas Potential (Jan. 4, 2018), https://perma.cc/JC3C-W6LV.

Lisa Friedman,

Trump Moves to Open Nearly All Offshore Waters to Drilling

N.Y. TIMES

(Jan. 4, 2018), https://perma.cc/34BF-22U4 (“The Obama administration blocked drilling on

about 94 percent of the outer continental shelf, the submerged offshore area between state

coastal waters and the deep ocean. Mr. Zinke charged that those restrictions had cost the

United States billions of dollars in lost revenue and said the new proposal would make about 90

percent of those waters available for leasing.”).

See id.

; Michael Livermore & Jayni Hein, Opinion,

The Keys to Our Coastal Kingdom

U.S. NEWS & WORLD REP. (Jan. 10, 2018), https://perma.cc/2MUM-6HQH.

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2018] MONUMENTAL DECISIONS 137

B. National Monument Designations Pursuant to the Antiquities Act

The Antiquities Act of 1906 authorizes the President to identify “objects

of historic or scientific interest” and reserve federal lands necessary to

protect such objects as national monuments.

With limited exceptions, each

president since the passage of the Antiquities Act has exercised his authority

to designate national monuments.

The Antiquities Act offers a broader

menu of protections for designated lands than OCSLA section 12(a), which

is limited to prohibiting oil and gas leasing.

When presidents designate national monuments, they typically proclaim

the existence of the monument and establish restrictions on activities within

the monument area. Directives in national monument proclamations instruct

land managing agencies (typically, the Bureau of Land Management, the

National Park Service, or the Forest Service) to implement certain use

restrictions and exercise their expertise to develop a management strategy

for the monument.

The basic management goal for designated national

monuments is protection and preservation.

Many national monument

designations prohibit new coal mining, hard rock mining, and oil and natural

gas production, as well as other activities like commercial fishing or the use

of off-road vehicles.

As such, national monument status generally confers a

broader set of public land protections than OCSLA section 12(a), which is

limited to prohibiting mineral leasing.

National monuments protect important ecological, scenic, and

historical values for present and future generations. They also serve to

preserve ecological areas valuable for scientific study and recreation. At the

same time, many national monument designations have been controversial.

Critics of national monument designations have argued that “locking up”

large areas of federal lands from development deprives nearby communities

of revenue from prohibited activities like grazing, drilling, commercial



Antiquities Act of 1906, 54 U.S.C. § 320301(a) (Supp. II 2015).

See

Kame’enui,

supra

note 2 (listing the national monuments designated during each

president’s administration).

See id.

Id.

See, e.g.

, Proclamation No. 9558, 3 C.F.R. § 402 (2017) (prohibiting mining and mineral

leasing in Bears Ears National Monument); Proclamation No. 9478, 3 C.F.R. § 231 (2017)

(prohibiting commercial fishing, drilling, and mining in the Papahānaumokuākea Marine

National Monument); Proclamation No. 7397, 3 C.F.R. § 22 (2002) (prohibiting mining, mineral

leasing, and off-road vehicles in Sonoran Desert National Monument, while allowing some

grazing to continue if BLM determines that grazing is compatible with the “paramount purpose”

of protecting the monument).

OCSLA, 43 U.S.C. § 1341(a) (2012).

For instance, President Clinton’s 1996 designation of the Grand Staircase-Escalante

National Monument, consisting of 1.7 million areas in southern Utah, prompted vocal local

opposition.

See, e.g.

, Associated Press,

Fightin’ Words: National Monuments

, NBC NEWS (Feb.

23, 2010), https://perma.cc/M76A-5UWW (“The last time they did that in Grand Staircase, they

locked out a lot of ranchers, they locked out a whole bunch of clean coal.”).

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138 ENVIRONMENTAL LAW [Vol. 48:125

fishing, and mining.

Supporters of monuments point to their environmental,

social, and economic benefits.

While the Antiquities Act describes “objects of historic or scientific

interest,” the Act has been interpreted and applied for more than a century

to allow the protection of very large areas, such as the Grand Canyon.

Courts, including the United States Supreme Court, have consistently upheld

the use of the Antiquities Act to protect large landscapes under the Act.

President Obama continued the longstanding presidential practice of

designating large land areas as national monuments under the Antiquities

Act. One of President Obama’s largest terrestrial monument designations

was Bears Ears National Monument in southeastern Utah, encompassing

approximately 1.35 million acres.

The President’s 2016 Proclamation

withdrew these federal lands from all forms of sale and disposition, as well

as mineral and geothermal leasing.

The Proclamation cited the area’s

“cultural, prehistoric, and historic legacy,” and its “diverse array of natural

and scientific resources,” such that monument status would ensure “that the

prehistoric, historic, and scientific values of this area remain for the benefit

of all Americans.”

President Obama also designated new marine monuments in the

Atlantic and Pacific Oceans, placing these areas off limits to commercial

fishing, drilling, and mining. The Northeast Canyons and Seamounts Marine

National Monument covers 4,913 square miles located 150 miles southeast of

Cape Cod—an area nearly the size of the state of Connecticut—and includes

three underwater canyons deeper than the Grand Canyon and four

underwater mountains home to rare and endangered species.

In his

Proclamation, President Obama framed the monument designation as a

response to growing threats to the ocean ecosystem.

He noted that these



See, e.g.

, Todd Gaziano & John Yoo,

Trump Can Reverse Obama’s Last-Minute Land

Grab

, WALL STREET J. (Dec. 30, 2016), https://perma.cc/9HB4-MXNH.

See, e.g.

, HEADWATERS ECON., UPDATED SUMMARY: THE ECONOMIC IMPORTANCE OF

NATIONAL MONUMENTS TO COMMUNITIES 1 (2017), https://perma.cc/6YQJ-T8ZG (“[L]ocal

economies surrounding all 17 of the national monuments studied expanded following the

creation of the new national monuments.”); Paul Lorah & Rob Southwick,

Environmental

Protection, Population Change, and Economic Development in the Rural Western United States

24 P

OPULATION & ENV’T 255, 258–59 (2003) (“[T]he presence of natural amenities—pristine

mountains, clean air, wildlife, and scenic vistas—stimulates employment, income growth and

economic diversification by attracting tourists . . . .”); Ray Rasker et al.,

The Effect of Protected

Federal Lands on Economic Prosperity in the Non-Metropolitan West

, 43 J. REGIONAL ANALYSIS

& POL’Y 110, 111 (2013).

Mark Squillace,

The Monumental Legacy of the Antiquities Act of 1906

, 37 GA. L. REV.

473, 483, 490 (2003) [hereinafter Squillace,

The Monumental Legacy

See

Cameron v. United States, 252 U.S. 450, 455–56 (1920) (upholding the designation of

the Grand Canyon as a national monument); Tulare County v. Bush, 306 F.3d 1138, 1140–41

(D.C. Cir. 2002) (discussing Giant Sequoia National Monument).

See generally

Proclamation No. 9558, 3 C.F.R. § 402 (2017).

Id.

Michael P. Norton,

Monument Designation for Seabed off Cape Cod Under Review by

Trump Administration

, MARBLEHEAD REP. (Apr. 27, 2017), https://perma.cc/7DS7-Y8W2.

Proclamation No. 9496, 3 C.F.R. § 262 (2017).

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2018] MONUMENTAL DECISIONS 139

“unique ecological resources” have long been the subject of scientific

interest, and that “[t]hese habitats are extremely sensitive to disturbance

from extractive activities.”

President Obama also expanded the existing Papahānaumokuākea

Marine National Monument in the Pacific Ocean, originally created by

President George W. Bush in 2006,

to more than 582,000 square miles,

making it the largest marine protected area in the world.

The expansion

prohibits commercial fishing and mineral extraction within the monument.

The Proclamation did not modify the existing marine monument designated

by President George W. Bush, but designated additional, adjacent areas

which “contain[] objects of historic and scientific interest” to be part of the

Papahānaumokuākea Marine National Monument Expansion.

Until now, no president has attempted to rescind a monument

designation made by his predecessor. Executive Order 13792 directed the

Secretary of the Interior to review all national monuments designated or

expanded after January 1, 1996, that either include more than 100,000 acres

of public lands or for which the Secretary determines inadequate “public

outreach and coordination with relevant stakeholders” occurred.

Following

this Executive Order, on May 11, 2017, the Department of the Interior

announced that it was accepting public comments on twenty-seven

monuments that it intended to review, including the Grand Staircase-

Escalante National Monument and Bears Ears National Monument.

The

public comment period was open for just sixty days, yet the Interior

Department received nearly 3 million comments which were

“overwhelmingly in favor of maintaining existing monuments.”

Secretary of



Id.

See

Proclamation No. 8031, 3 C.F.R. § 67 (2007).

Frances Kai-Hwa Wang,

Obama To Expand Papah

naumoku

kea Marine National

Monument in Hawaii

, NBC NEWS (Aug. 26, 2016),

https://perma.cc/4PQR-A7BP.

See

Proclamation No. 9478, 3 C.F.R. § 231 (2017).

Id.

The President also stated that:

the Secretary of Commerce should consider initiating the process under the National

Marine Sanctuaries Act to designate the Monument Expansion area and the Monument

seaward of the Hawaiian Islands National Wildlife Refuge and Midway Atoll National

Wildlife Refuge and Battle of Midway National Memorial as a National Marine Sanctuary

to supplement and complement existing authorities.

Id.

(citation omitted).

Exec. Order No. 13,792, 82 Fed. Reg. 20,429, 20,429 (May 1, 2017).

See generally

Review of Certain National Monuments Established Since 1996; Notice of

Opportunity for Public Comment, 82 Fed. Reg. 22,016 (May 11, 2017).

U.S. DEP’T OF THE INTERIOR, REPORT SUMMARY BY U.S. SECRETARY OF THE INTERIOR RYAN

ZINKE (2017), https://perma.cc/G8G6-NL28 [hereinafter ZINKE REPORT];

Conservation Groups

File Lawsuit After President Trump Illegally Axed Majestic Bears Ears National Monument

EARTHJUSTICE (Dec. 7, 2017), https://perma.cc/HJ38-NKAQ (“‘Nearly three million Americans

voiced their support for national monuments during Trump’s monument review, but he chose to

ignore both the American people and the letter of the law to cater to the extractive industries

who would gut our natural wonders,’ said Heidi McIntosh, Managing Attorney in Earthjustice’s

Rocky Mountain office.”).

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140 ENVIRONMENTAL LAW [Vol. 48:125

the Interior Ryan Zinke released a two-page summary of his findings.

September 17, 2017, the

Washington Post

published a leaked copy of

Secretary Zinke’s longer draft memorandum to President Trump, in which

he recommended reducing the size of four national monuments and

modifying the proclamations of several other monuments to allow a wider

array of uses, including mining, hunting, commercial fishing, and grazing.

On December 4, 2017, acting without congressional approval, President

Trump issued a Proclamation reducing the size of Bears Ears National

Monument in southern Utah by 85% and separating it into two units.

also reduced the boundaries of Grand Staircase-Escalante National

Monument by nearly 50%, claiming that its current boundaries were “greater

than the smallest area compatible with the protection of the objects for

which lands were reserved.”

Conservation organizations and Native

American tribes filed lawsuits challenging the legality of these actions.

No court has ever ruled on the legality of presidential monument

modifications. In the first decades of the Antiquities Act’s existence, some

presidents reduced the size of national monuments designated by their

predecessors. Most of these actions were relatively minor, and none of these

modifications were challenged in court.

Further, no president has reduced

the size of a monument since President Kennedy modified the boundaries of

the Bandelier National Monument in New Mexico in 1963.

100

All of these

presidential modifications occurred before the passage of the Federal Land

Policy and Management Act in 1976, which expressly reserved to Congress

the power to rescind and modify national monuments created under the

Antiquities Act.

101

In several instances, Congress has modified or abolished

national monuments through legislation.

102



ZINKE REPORT,

supra

note 93.

See

Juliet Eilperin,

Shrink at Least 4 National Monuments and Modify a Half-Dozen

Others, Zinke Tells Trump

WASH. POST (Sept. 17, 2017), https://perma.cc/M84Q-4UPT.

See

generally

Memorandum from Ryan Zinke, Sec’y of the Interior, U.S. Dep’t of the Interior, to

President Donald J. Trump (Aug. 24, 2017), https://perma.cc/EJ56-NRAC.

Proclamation No. 9681, 82 Fed. Reg. 58,081, 58,087 (Dec. 8, 2017) (signed December 4,

2017);

see

Lee Davidson & Thomas Burr,

Trump Greeted by Cheers and Protests as He Visits

Utah, Trims 2 Million Acres from Bears Ears and Grand Staircase-Escalante National

Monuments

SALT LAKE TRIB.

(Dec. 4, 2017), https://perma.cc/BX8J-W579.

Proclamation No. 9682, 82 Fed. Reg. 58,089, 58,091 (Dec. 8, 2017) (signed December 4,

2017);

see also

Nicholas Bryner et al.,

supra

note 10.

Complaint for Declaratory & Injunctive Relief, Nat. Res. Def. Council v. Trump, No. 1:17-

cv-02606 (D.D.C. filed Dec. 7, 2017); Complaint for Injunctive & Declaratory Relief, Hopi Tribe

v. Trump, No. 1:17-cv-02590 (D.D.C. filed Dec. 4, 2017).

See

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 65.

100

Proclamation No. 3539, 3 C.F.R. § 62 (Supp. 1963).

101

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 65;

see

Federal Land Policy

and Management Act of 1976, 43 U.S.C. § 1714(j) (Supp. II 2015) (“The Secretary shall not . . .

modify or revoke any withdrawal creating national monuments under chapter 3203 of [the

Antiquities Act].”).

102

For example, Congress abolished the Wheeler National Monument in 1950, Act of Aug. 3,

1950, ch. 534, 64 Stat. 405; the Shoshone Cavern in 1954, Act of May 17, 1954, ch. 203, 68 Stat. 98;

the Papago Saguaro in 1930, Act of Apr. 7, 1930, ch. 107, 46 Stat. 142; the Old Kasaan in 1955,

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2018] MONUMENTAL DECISIONS 141

The on-the-ground impacts of removing national monument status or

diminishing the size of a national monument would depend upon the

particular monument’s characteristics and the protections that would be

lost. Leasing for coal mining, oil, and natural gas production could resume if

an area reverted back to its previous status under a management plan that

allowed such extractive uses.

103

For marine monuments, commercial fishing,

mining, and oil and gas leasing could resume, unless prohibited by other

federal laws. This Article next turns to the Property Clause of the U.S.

Constitution, which vests Congress with plenary authority over federal

lands, and to the text and legislative history of the two statutory provisions

at issue: OCSLA section 12(a) and the Antiquities Act.

III.

THE CONSTITUTIONAL AND STATUTORY FRAMEWORK

This Part describes the relevant constitutional and statutory framework

for OCSLA section 12(a) and the Antiquities Act. The Property Clause of the

U.S. Constitution provides Congress with plenary power over federal lands.

In OCSLA section 12(a) and the Antiquities Act, Congress delegated specific

powers to the executive branch. A careful reading of these statutory

provisions, as well as relevant history leading up to and subsequent to their

passage, reveals that Congress granted to the President a one-way power to

preserve federal lands in both provisions. Congress reserved its authority to

rescind or modify these reservations once in place.

A. The Property Clause: Congress as Caretaker of Public Lands

The U.S. Constitution establishes a property system whereby Congress

has plenary authority over public lands. The Property Clause of the

Constitution provides that: “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.”

104

As the U.S. Supreme Court has

articulated, “[t]he power over the public land [is] thus entrusted to

Congress . . . without limitations. And it is not for the courts to say how that

trust shall be administered. That is for Congress to determine.”

105

A limited role for the executive branch in public lands decision making

is embedded in the Property Clause of the U.S. Constitution. Congress may

delegate its authority to the President or components of the executive

branch so long as it sets out an “intelligible principle” to guide that exercise



Act of July 26, 1955, ch. 387, 69 Stat. 380; the Fossil Cyad in 1956, Act of Aug. 1, 1956, ch. 847, 70

Stat. 898; and the Castle Pinckney in 1956, Act of Mar. 29, 1956, ch. 104, 70 Stat. 61.

103

For example, land within the Bears Ears National Monument in Utah was open to new

coal mining, oil and gas production, and uranium prospecting and mining under the

management plan in place prior to the designation of Bears Ears as a national monument in

2016.

See

BUREAU OF LAND MGMT.: MONTICELLO FIELD OFFICE, RECORD OF DECISION AND

APPROVED RESOURCE MANAGEMENT PLAN 3 (2008).

104

U.S. CONST. art. IV, § 3, cl. 2.

105

Alabama v. Texas, 347 U.S. 272, 273 (1954) (internal quotations omitted).

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142 ENVIRONMENTAL LAW [Vol. 48:125

of authority.

106

Requiring intelligible principles in statutory delegations

ensures that “courts charged with reviewing the exercise of delegated

legislative discretion will be able to test that exercise against ascertainable

standards.”

107

In our increasingly complex society, “Congress simply cannot do its job

absent an ability to delegate power under broad general directives.”

108

This is

true with respect to management of federal lands and waters, which

comprise approximately 640 million acres of land in the United States.

109

Through multiple statutes, Congress has delegated powers to numerous

federal agencies, as well as the President, to manage public lands.

110

Congress frequently delegates broad authority to federal land management

agencies such as the Bureau of Land Management (BLM), the Forest Service,

the Fish and Wildlife Service, and the National Park Service to set rules and

regulations to guide the administration, management, and development of

federal lands.

111

Over its long history, Congress has “withdrawn,” or exempted, some federal

public lands from statutes that allow for resource extraction and development,

and “reserved” them . . . for preservation and resource conservation. Congress

has also, in several instances, delegated to the executive branch the authority

to set aside lands for particular types of protection.

112



106

Accord

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409 (1928) (“If Congress

shall lay down by legislative act an intelligible principle to which the person or body authorized

to fix such rates is directed to conform, such legislative action is not a forbidden delegation of

legislative power.”).

107

Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 685–86 (1980) (Rehnquist, J.,

concurring). Courts reviewing agency actions pursuant to delegated authority may also

consider whether Congress intended to vest important economic and policy considerations

with the agency, and if so, whether it made that intent clear.

See, e.g.

, Food & Drug Admin. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (reviewing a policy change by the

Food and Drug Administration to regulate tobacco products and stating, “we are confident that

Congress could not have intended to delegate a decision of such economic and political

significance to an agency in so cryptic a fashion”).

108

Mistretta v. United States, 488 U.S. 361, 372 (1989).

109

CAROL HARDY VINCENT ET AL., CONG. RESEARCH SERV., R42346, FEDERAL LAND OWNERSHIP:

OVERVIEW AND DATA 1 (2017) (“Four major federal land management agencies manage 610.1

million acres of this land, or about 95% of all federal land in the United States. These agencies

are as follows: Bureau of Land Management (BLM), 248.3 million acres; Forest Service (FS),

192.9 million acres; Fish and Wildlife Service (FWS), 89.1 million acres; and National Park

Service (NPS), 79.8 million acres. Most of these lands are in the West, including Alaska.”). BLM

is also responsible for subsurface mineral resources in areas totaling 700 million acres. B

UREAU

LAND MGMT., MINING CLAIMS AND SITES ON FEDERAL LANDS, at i (2016), https://perma.cc/CLK9-

7947. “Ownership and use of federal lands have stoked controversy for decades[,] . . . including

the extent to which the federal government should own land,” and how to balance the

development and protection of natural resources on federal lands. V

INCENT ET AL.,

supra

, at 1.

110

VINCENT ET AL.,

supra

note 109, at 19.

111

Id.

at 19–20.

112

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 57 (footnote omitted) (citing

Wilderness Act, 16 U.S.C. § 1133(d)(3) (2012));

see also

Wild and Scenic Rivers Act, 16 U.S.C.

§ 1280(b).

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2018] MONUMENTAL DECISIONS 143

The Antiquities Act and OCSLA section 12(a) are two such delegations,

made to the President directly.

113

Both OCSLA section 12(a) and the Antiquities Act contain intelligible

principles guiding the exercise of executive branch authority. However, the

authority conveyed by Congress to the President in these provisions is

limited. As described below, Congress delegated to the President the power

to preserve public lands, but it did not delegate the power to lift such

protections.

114

The one-way levers of the Antiquities Act and OCSLA section

12(a) allow the executive branch to protect special objects and places by

effectively pressing “pause,” and reserve to Congress the ability to alter or

remove these protections. This conclusion is bolstered by an examination of

the plain text of the statutes, their legislative history, relevant attorney

general opinions, and additional public land statutes passed before and after

these Acts, which shows that Congress was clear in other laws when it

sought to delegate “multidirectional” powers to the executive branch.

B. OCSLA Section 12(a): Plain Text, Legislative History, and

Contemporaneous Statutes

Congress enacted OCSLA in 1953 in order to establish an orderly

framework for governing the exploration and development of fossil fuels on

the Outer Continental Shelf.

115

In addition to promoting oil and gas

development, Congress was mindful of protecting other values on the Outer

Continental Shelf, including conservation. OCSLA provides that the

Secretary of the Interior can “at any time prescribe and amend such rules

and regulations as he determines to be necessary and proper in order to

provide for the prevention of waste and conservation of natural resources of

the Outer Continental Shelf, and the protection of correlative rights

therein.”

116

In addition, Congress delegated separate authority to the President in

OCSLA section 12(a). The plain language of OCSLA section 12(a) should be

the starting point for analyzing its meaning, as in any exercise of statutory

interpretation.

117

As the Supreme Court has stated, “There is . . . no more

persuasive evidence of the purpose of a statute than the words by which the

legislature undertook to give expression to its wishes.”

118

OCSLA section 12(a) is titled “Reservations,” and states, in full: “The

President of the United States may, from time to time, withdraw from

disposition any of the unleased lands of the outer Continental Shelf.”

119



113

See id.

at 56–57;

see also

discussion

infra

Part III.B.

114

See

discussion

infra

Part III.B.

115

See

OCSLA, 43 U.S.C. § 1332 (2012). See

infra

Part IV for more information on the history

of OCSLA and the public trust doctrine.

116

43 U.S.C. § 1334(a).

117

See, e.g.

, Church of the Holy Trinity v. United States, 143 U.S. 457, 458 (1892)

(interpreting a statute by looking at the plain language first).

118

United States. v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543 (1940).

119

Ch. 345, § 12, 67 Stat. 462, 469 (codified at 43 U.S.C. § 1341(a)).

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144 ENVIRONMENTAL LAW [Vol. 48:125

plain reading of this provision shows that Congress granted to the President

the power to withdraw offshore lands from disposition through leasing.

Absent in this text is any mention of the power to reverse withdrawals of

Outer Continental Shelf lands and return them to leasing. Section 12(a) is

titled, simply, “Reservations.” Like the provision itself, this title does not

indicate any more expansive powers, such as the power to restore

withdrawn lands to leasing or to modify previous withdrawals.

Offshore lands withdrawn by the President using section 12(a) are not

necessarily insulated from disposition by leasing permanently because

Congress retains authority over those lands. Congress has plenary authority

over public lands as set forth in the Property Clause of the U.S. Constitution,

and can pass legislation restoring some or all of the lands withdrawn by the

President to disposition by leasing.

120

But the plain text of section 12(a) does

not convey this authority to the President.

The legislative history of section 12(a) supports the interpretation that

it was intended as a one-way lever to remove lands from disposition through

mineral leasing. While there is not a great deal of legislative history

addressing section 12(a), in particular, the 1953 Senate Report

accompanying the bill that ultimately became OCSLA discusses “the

authority of the President to withdraw certain areas of the seabed of the

Continental Shelf from leasing,” but not the authority to rescind any such

withdrawals.

121

The Senate Report also makes clear that Congress intended section

12(a) to be invoked by the President for a variety reasons, presumably

including conservation. In the Committee Amendments, section 12(a) was

retitled from “National Emergency Reservations” to simply “Reservations,”

and a clause at the end of it that would have tied the President’s authority to

reserve land to “the interest of national security” was removed.

122

The

explanation provided for this change reads: “The committee believes that

the authority of the President to withdraw certain areas of the seabed of the

Continental Shelf from leasing should

not be limited to security

requirements

.”

123

An Assistant Attorney General likewise recommended that

this limitation be deleted:

[Section 12(a)] provides that the President may withdraw and reserve unleased

areas for Federal use in the interest of national security. This provision is

unnecessary, since leasing is not mandatory in any case; and it

is undesirable,

in that it may imply that it constitutes the only permissible reason for refusing



120

See, e.g.

Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1701 (“Congress

[can] exercise its constitutional authority to withdraw or otherwise designate or dedicate

Federal lands . . . .”).

121

S. REP. NO. 83-411, at 26 (1953);

see also

Kevin O. Leske,

“Un-Shelfing” Lands Under the

Outer Continental Shelf Lands Act (OCSLA): Can a Prior Executive Withdrawal Under Section

12(a) Be Trumped by a Subsequent President?

, 26 N.Y.U. ENVTL. L.J. 1, 27–31 (2017) (describing

the legislative history of section 12(a)).

122

S. REP. NO. 83-411, at 22, 26.

123

Id.

at 26 (emphasis added).

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to lease

. It should be omitted, or at least the final phrase, “for the use of the

United States in the interest of national security,” should be deleted.

124

The inaugural use of section 12(a) was President Eisenhower’s action

withdrawing offshore lands from leasing to create a marine sanctuary; from

the beginning, the provision was understood as allowing broad withdrawal

purposes, including for preservation.

125

The absence of any explicitly delegated power to rescind OCSLA

section 12(a) withdrawals should be contrasted with the “two-way” power

delegated to the Secretary of Commerce in the National Marine Sanctuaries

Act,

126

passed shortly after OCSLA, in 1972.

127

That Act provides for the

creation of national marine protected areas, and sets forth “[p]rocedures for

designation and implementation” of protected marine areas that the

Secretary must follow.

128

In describing the “terms of designation” for new

marine sanctuaries, the Act provides that: “The terms of designation may be

modified

only by the same procedures by which the original designation is

made

.”

129

The terms of designation (and de-designation) of marine

sanctuaries include public notice of the proposal, preparation and

publication of a draft environmental impact statement and draft

management plan, and at least one public hearing in the coastal area or

areas that will be most affected by the proposed designation.

130

The language of the National Marine Sanctuaries Act illustrates that

when Congress sought to convey a multidirectional power to the executive

branch, it did so explictly and set forth specific procedures to guide both

designations and de-designations. Yet even when Congress amended OCSLA

in 1978, it maintained section 12(a) in its original form: without any express

delegation of authority to undo prior offshore leasing withdrawals.

131

In short, the plain text and limited legislative history of section 12(a)

support the interpretation that Congress delegated authority to the President

to withdraw areas from offshore leasing, leaving it up to the legislative

branch whether to later lease some of these public lands. In this manner,

Congress retains its authority as ultimate caretaker of public lands and

serves as a check on potentially overzealous reservations by the executive

branch.



124

Id.

at 39 (emphasis added). Section 12(a) was originally titled section 10(a).

See id.

125

See

Proclamation No. 3339, 3 C.F.R. § 20 (Supp. 1960) (signed March 19, 1960),

reprinted

54 U.S.C. § 320101 (Supp. II 2015).

126

16 U.S.C. §§ 1431–1445c (2012).

127

Pub L. No. 92-532, 86 Stat. 1061 (1972).

128

16 U.S.C. § 1434.

129

Id.

§ 1434(a)(4) (emphasis added).

130

See id.

§ 1434(a).

131

See

Outer Continental Shelf Lands Act Amendments of 1978: Statement on Signing S. 9

into Law, 1978 P

UB. PAPERS 1530, 1531 (Sept. 18, 1978).

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146 ENVIRONMENTAL LAW [Vol. 48:125

C. The Antiquities Act: Plain Text, Legislative History, and

Contemporaneous Statutes

The Antiquities Act of 1906 is one of the nation’s earliest laws providing

for presidential discretion to reserve public lands for protection. Section 2 of

the Antiquities Act grants the President the authority to withdraw public

lands for the protection of objects of historic or scientific interest. It states:

the President of the United States is hereby authorized, in his discretion, to

declare by public proclamation historic landmarks, historic and prehistoric

structures, and other objects of historic or scientific interest that are situated

upon the lands owned or controlled by the Government of the United States to

be national monuments, and may reserve as a part thereof parcels of land, the

limits of which in all cases shall be confined to the smallest area compatible

with proper care and management of the objects to be protected.

132

The plain language is clear that when it passed the Antiquities Act, Congress

delegated to the President the power to reserve federal lands in order to

create national monuments. Congress did not delegate the authority to

abolish or diminish monuments.

In delegating the authority to create monuments, one of the drafters’

aims was to empower the President to act quickly to prevent the destruction

of unique and valuable objects and resources situated within the federal

government’s expansive land holdings.

133

Scientists at the turn of the 19th

century were concerned about the destruction and confiscation of

unattended ruins and artifacts on federal lands.

134

Consistent with these

concerns, some early bills leading up to the Antiquities Act’s passage sought

to punish vandals who disturbed ruins on public property.

135

As explored more thoroughly in other scholarship, statutes passed just

before and after the Antiquities Act reveal that Congress knew how to

delegate the authority to modify federal land withdrawals, but chose not to

do so in the Antiquities Act.

136

The Pickett Act of 1910

137

and the Forest

Service Organic Act of 1897

138

each contain language authorizing presidential



132

Antiquities Act of 1906, 34 Stat. 225 (1906). The language of the Antiquities Act was

edited and re-codified in 2014 at 54 U.S.C. §§ 320301(a)–(b) with the stated intent of

“conform[ing] to the understood policy, intent, and purpose of Congress in the original

enactments.” Act of Dec. 19, 2014, Pub. L. No. 113-287, § 2, 128 Stat. 3094, 3094;

see

54 U.S.C.

§ 320301(a)–(b) (Supp. II 2015).

133

See

HAL ROTHMAN, AMERICA’S NATIONAL MONUMENTS: THE POLITICS OF PRESERVATION 47–

48 (1989).

134

See id.

at 6–8.

135

See, e.g.

id.

at 44 (“The Lodge-Rodenberg bill also made collecting artifacts in the public

domain a misdemeanor. . . . [Critics] stressed that this failed to differentiate between archeology

and vandalism and made all excavators liable to prosecution . . . .”).

136

See

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 57–58.

137

Act of June 25, 1910, ch. 421, 36 Stat. 847 (repealed 1976).

138

Act of June 4, 1897, ch. 2, 30 Stat. 11, 34 (codified as amended at 16 U.S.C. §§ 473–482,

551 (2012)).

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modification of certain withdrawals of federal lands.

139

The contrast between

the more expansive authority expressly delegated in these contemporaneous

statutes—to reserve land, and then subsequently, to modify or abolish such

reservations—and the lesser authority delegated in the Antiquities Act

supports the interpretation that Congress intended to give the President the

power to create monuments, alone.

140

Moreover, when Congress passed the Federal Land Policy and

Management Act in 1976, it clarified that national monuments can be

revoked or modified by an act of Congress, only.

141

The House Committee

explained that the law “would also specifically reserve to the Congress the

authority to modify and revoke withdrawals for national monuments created

under the Antiquities Act.”

142

No president, until President Trump’s 2017

actions, has reduced the size of a national monument subsequent to the

passage of the Federal Land Policy and Management Act.

143

Finally, the executive branch has long acknowledged the limits to the

President’s authority over established national monuments. In 1938,

Attorney General Cummings concluded that the Antiquities Act “does not

authorize [the President] to abolish [national monuments] after they have

been established.”

144

The opinion explained that “the reservation made by the

President under the discretion vested in him by the statute

was in effect a

reservation by the Congress itself

,” and that, except where Congress

expressly provided, “the President thereafter was without power to revoke

or rescind the reservation.”

145

In 1924, the Solicitor General concluded that

the President lacked the authority to reduce the size of a national

monument.

146

And as recently as 2004, the Solicitor General represented to

the Supreme Court that “Congress intended that national monuments would

be permanent; they can be abolished only by [an] Act of Congress.”

147



139

See

16 U.S.C. § 473; Act of June 25, 1910 § 1.

140

See

Letter from 121 Law Professors to Ryan Zinke, Sec’y, Dep’t of the Interior, & Wilbur

Ross, Sec’y, Dep’t of Commerce (July 6, 2017), https://perma.cc/6HDY-RWN8.

141

Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1714(j) (2012).

142

H.R. REP. NO. 94-1163, at 9 (1976);

see also

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 60–61 (“An examination of [the Federal Land Policy and Management Act of

1976]’s legislative history removes any doubt that section 204(j) was intended to reserve to

Congress the exclusive authority to modify or revoke national monuments.”).

143

The last presidential national monument reduction, before President Trump’s two 2017

reductions, was President Kennedy’s modification of the Bandelier National Monument in 1963.

See

Proclamation No. 3539, 3 C.F.R. § 62 (Supp. 1963).

144

Proposed Abolishment of Castle Pinckney National Monument, 39 Op. Att’y Gen. 185,

185 (1938).

145

Id.

at 187 (emphasis added).

146

“Relying on a 1921 Attorney General opinion involving ‘public land reserved for

lighthouse purposes,’ the Solicitor concluded that the President was not authorized to restore

lands to the public domain that had been previously set aside as part of a national monument.”

Squillace et al.,

Presidents Lack Authority

supra

note 16, at 66;

see also

Squillace,

The

Monumental Legacy

supra

note 79, at 559–60.

147

Reply Brief for the United States in Response to Exceptions of the State of Alaska at 32

n.20, Alaska v. United States, 545 U.S. 75 (2005) (No. 128). This brief was filed by Acting

Solicitor General Paul Clement during the Presidency of George W. Bush.

Id.

at 50.

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148 ENVIRONMENTAL LAW [Vol. 48:125

In short, one-way levers to create national monuments and to reserve

offshore lands reflect a congressional desire to allow relatively

unencumbered executive branch action to protect special places, while

preserving the legislative branch’s prerogative over federal land

management as established in the Property Clause. The one-way levers of

the Antiquities Act and OCSLA section 12(a) thus maintain the traditional

separation of powers between Congress and the President, which vests

Congress with plenary authority over public lands.

While the statutes’ plain text, legislative history, and relevant Attorney

General opinions support the view that Congress conferred a one-way lever

to preserve, courts interpreting these provisions should also consider the

particular context of government stewardship of public lands, which can

inform their understanding of the provisions.

148

In the spirit of this broader

inquiry, this Article next examines a “procedural” rationale for the structure

of these statutes, with roots in the common law public trust doctrine.

IV.

THE PUBLIC TRUST DOCTRINE: PROTECTING PUBLIC LANDS THROUGH

DEMOCRATIC DECISION MAKING

The common law public trust doctrine provides important context for a

history of public lands jurisprudence in which courts demand greater

justification for actions allowing development or diminishment of public

lands than for protecting or withdrawing those same lands. This Part

describes the Roman, English, and U.S. common law origins of the public

trust doctrine, as well as how it has evolved in the United States to serve as

a bedrock public lands doctrine that prioritizes democratic decision making

where important public trust interests are at stake.

The public trust doctrine, broadly stated, provides that the government

holds certain lands and waterways in trust for public benefit and public use.

The public trust doctrine has long been held to apply to lands beneath

navigable waters and tidelands, finding that such lands are “inherently the

property of the public at large.”

149

Much like national monuments, the public

trust doctrine has been imbued with an almost mythic quality.

150

Both

national monuments and the public trust doctrine fit neatly within the long-

standing national narrative that certain natural and cultural treasures are

common to all and worthy of lasting protection. The California Supreme



148

See, e.g.

Cass R. Sunstein,

Interpreting Statutes in the Regulatory State

, 103 HARV. L.

REV. 405, 454 (1989) (“[T]he interpretation of a text requires courts to refer to background

norms in interpreting terms.”).

149

Rose,

Joseph Sax

supra

note 21, at 351.

150

See

Araiza,

supra

note 27, at 695 & n.4 (citing Richard Lazarus,

Changing Conceptions of

Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine

, 71 IOWA

L. REV. 631, 701 (1986) (noting the public trust doctrine’s “mystical and romantic appeal”));

Carol Rose,

The Comedy of the Commons: Custom, Commerce, and Inherently Public Property

53 U.

CHI. L. REV. 711, 730 (1986) [hereinafter Rose,

The Comedy of the Commons

] (“A

particularly striking aspect of this historical pattern is the resonance that public trust doctrine

has in our law, despite frailties in its original authority.”).

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Court articulated the government responsibility over public trust resources

National Audubon Society v. Superior Court

151

[T]he public trust is more than an affirmation of state power to use public

property for public purposes. It is an affirmation of the duty of the state to

protect the people’s common heritage of streams, lakes, marshlands and

tidelands, surrendering that right of protection only in rare cases when the

abandonment of that right is consistent with the purposes of the trust.

152

While it is primarily a doctrine of state common law, and subject to a

fair amount of controversy about the extent of its reach and application,

153

the public trust doctrine has been recognized by the U.S. Supreme Court for

well over a century.

154

From a substantive standpoint, the doctrine declares certain natural

resources to be property of the public at large, and certain uses to be “public

trust uses,” including navigation, fishing, commerce, and recreation.

155

From

a procedural standpoint, the doctrine imposes constraints on certain actors

with respect to public trust lands and uses. Specifically, in many states, the

public trust doctrine has evolved to constrain non-legislative actors from

alienating or modifying public trust lands without explicit legislative

authority.

156

This procedural aspect of the public trust doctrine likely serves

a few aims. First, it vests decisions concerning commonly held public trust

property with a broadly accountable democratic body, as opposed to lone

actors or narrow interest groups.

157

Second, it ensures that when a legislative

body intends to allow alienation or diminishment of public trust resources,

the legislature states so explicitly.

158

This Article will return to these two

aims in Part V, which describes how the public trust doctrine should serve

as a background principle, or canon of interpretation, framing our



151

658 P.2d 709 (Cal. 1983).

152

Id.

at 724.

153

For an overview of the debate surrounding the doctrine, see Charles F. Wilkinson,

The

Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional

Doctrine

, 19 ENVTL. L. 425, 426 (1989) [hereinafter Wilkinson,

Headwaters of the Public Trust

]

(explaining that the doctrine focuses on water-based property, valuable for both economic and

conservation reasons, and that the doctrine’s application can cause a quick “collision between

two treasured sets of expectancy interests,” private property owners and the general public);

see also

Rose,

The Comedy of the Commons

supra

note 150, at 713–14 (describing how modern

courts have expanded the public trust doctrine to apply to a new public trust use, recreation,

and geographically, to the “area from the tidelands to the dry sand areas landward of the high-

tide mark”).

But see id.

at 722 (“[T]he recent judicial expansions of public access, like the

academic literature, often simply refer us back to traditional doctrines.”).

154

See

Ill. Central R.R. v. Illinois

(

Illinois Central

), 146 U.S. 387, 436–37 (1892).

155

See

Wilkinson,

Headwaters of the Public Trust

supra

note 153,

at 465;

see also

Rose,

The

Comedy of the Commons

supra

note 150,

at 728 n.69 (“The main additional contenders are now

recreation and environmental preservation.”).

156

See

Sax,

The Public Trust Doctrine

supra

note 20, at 563.

157

Id.

at 558.

158

See id.

at 502 (“[The court] will view with skepticism any dispositions of trust lands and

will not allow them unless it is perfectly clear that the dispositions have been fully considered

by the legislature.”).

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150 ENVIRONMENTAL LAW [Vol. 48:125

understanding of public land preservation statutes including the Antiquities

Act and OCSLA section 12(a).

A. The Public Trust Doctrine in Roman and English Common Law

A full recitation of the Roman law origins of the public trust doctrine is

beyond the scope of this Article and well covered in other works.

159

Nonetheless, an overview of key developments in Roman and English

common law is instructive in introducing the natural resources traditionally

protected by the doctrine and the corresponding restraints that the doctrine

imposed upon the monarch and other government actors.

The public trust doctrine originated under Roman law as the principle

that a sovereign state holds public lands—particularly the seabed and lands

affected by the tides—in trust for the benefit of the public. “This [doctrine]

permitted the public to use the ocean and the seashore for any noninjurious

purpose.”

160

Some public interests, such as navigation and fishing, were

considered public uses protected from infringement by the sovereign and

other actors.

161

In common areas like the sea, seashore, highways, and

running water, “perpetual use was dedicated to the public.”

162

The English monarch originally claimed a private interest in the land

beneath the sea, including the power to grant this land to individuals,

removing it from the public domain.

163

Around the time of the Magna Carta

(1215), the law began to recognize additional public rights in the seabed and

seashore.

164

Subsequently, the monarch held two interests in the seashore

and tidal lands: the “jus privatum” and the “jus publicum.”

165

The jus privatum was the proprietary interest in the seabed and

seashore which the sovereign had previously possessed.

166

“This interest . . .

was subordinate to the jus publicum, an interest which the [monarch]

henceforth held in his capacity as representative of the people, for the



159

See, e.g.

Joseph L. Sax,

Liberating the Public Trust Doctrine from Its Historical

Shackles

, 14 U.C. DAVIS L. REV. 185, 186 n.6 (1980) (citing JUSTINIAN, INSTITUTES, 2.1.1–.6 (J.B.

Moyle trans., Oxford Univ. Press rev. ed. 1911)); Sax,

The Public Trust Doctrine

supra

note 20,

at 475–78; Heather J. Wilson, Comment,

The Public Trust Doctrine in Massachusetts Land Law

11 B.C. E

NVTL. AFF. L. REV. 839, 840–43 (1984) [hereinafter Wilson,

Massachusetts

];

see also

James L. Huffman,

Speaking of Inconvenient Truths—A History of the Public Trust Doctrine

, 18

UKE ENVTL. L. & POL’Y F. 1, 12–19 (2007).

160

Wilson,

Massachusetts

supra

note 159, at 840. “Roman writers discuss[ed] public

activities which were permitted upon the seashore, such as ‘fishing, navigating and taking

water.’”

Id.

at 843.

161

Id.

162

Sax,

The Public Trust Doctrine

supra

note 20, at 475 (quoting W.A. HUNTER, ROMAN LAW

311 (J. Ashton Cross trans., 4th ed. 1903)).

163

Id.

164

Wilson,

Massachusetts

supra

note 159, at 844 (citing R. HALL, ESSAY ON THE RIGHTS OF

THE

CROWN AND THE PRIVILEGES OF THE SUBJECT IN THE SEA SHORES OF THE REALM 43 n.(v) (2d ed.

1875)).

165

Id.

The “public right” to certain lands was called the “jus publicum” in Roman law.

See

Rose,

The Comedy of the Commons

supra

note 150, at 713.

166

Wilson,

Massachusetts

supra

note 159, at 844.

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2018] MONUMENTAL DECISIONS 151

protection of their common navigational and fishing rights.”

167

The jus

publicum could be alienated only by an act of Parliament.

168

Thus, these

public lands were to be spared from potential total elimination at the hands

of the monarch.

As the U.S. Supreme Court explained in

Appleby v. City of New York

, in

English common law:

[T]he powers of the king are limited, and he can not now deprive his subjects

of these rights by granting the public navigable waters to individuals. But there

can be no doubt of the right of parliament in England, or the legislature of this

state, to make such grants, when they do not interfere with the vested rights of

particular individuals. . . . Hence the legislature as the representatives of the

public may restrict and regulate the exercise of those rights in such manner as

may be deemed most beneficial to the public at large; provided they do not

interfere with vested rights which have been granted to individuals.

169

Therefore, notwithstanding the restraints the public trust doctrine imposed

upon the monarch, it arguably remained within the authority of Parliament

to enlarge or diminish public trust rights for another legitimate public

purpose.

170

This structure has modern analogs in some U.S. states’ public trust

doctrines that persist today, which place additional constraints on non-

legislative actors with respect to public land management. OCSLA section

12(a) and the Antiquities Act, in reserving to the legislature the ability to

remove protected land status once granted, parallel this structure and evince

a “procedural” or “democratic” rationale for their one-way lever structure.

B. The Public Trust Doctrine in the United States

The history of the public trust doctrines in many eastern U.S. states

extends back to before statehood. When the original thirteen colonies were



167

Id.

;

see also

Shively v. Bowlby, 152 U.S. 1, 57 (1894) (“At common law, the title and the

dominion in lands flowed by the tide were in the King for the benefit of the nation.”); Arnold v.

Mundy, 6 N.J.L. 1, 71–72 (1821) (“[T]he wisdom of that law has placed it in the hands of the

sovereign power, to be held, protected, and regulated for the common use and benefit. . . . This

principle, with respect to rivers and arms of the sea, is clearly maintained in the case of the

royal fishery upon the Banne . . . .”); S

TUART A. MOORE, A HISTORY OF THE FORESHORE AND THE

LAW RELATING THERETO, AND HALL’S ESSAY ON THE RIGHTS OF THE CROWN IN THE SEA-SHORE 389

(WM. W. Gaunt & Sons, Inc. 1993) (1888) (“[F]or the jus privatum, that is acquired to the subject

either by patent or prescription, must not prejudice the jus publicum.”).

168

Wilson,

Massachusetts

supra

note 159, at 844;

see also

Appleby v. City of New York, 271

U.S. 364, 382 (1926); Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410–12 (1842); Commonwealth v.

Alger, 61 Mass. (7 Cush.) 53, 83 (1851).

But see

Wilkinson,

Headwaters of the Public Trust

supra

note 153, at 431 n.31 (citing a conflicting view from R. CLARK, WATERS AND WATER RIGHTS

101 (1970)).

169

Appleby

, 271 U.S. at 382 (quoting Chancellor Walworth).

170

See id.

; Sax,

The Public Trust Doctrine

supra

note 20, at 476;

see also

Wilkinson,

The Public Trust

supra

note 27, at 310 (discussing

required legislative authorization for administrative agencies to use public resources to

promote private gain).

188

Sax,

The Public Trust Doctrine

supra

note 20, at 490–91, 534.

189

Id.

at 534.

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154 ENVIRONMENTAL LAW [Vol. 48:125

the collection of adequate information, public participation in decisions,

informed and accountable choices, and close scrutiny of private giveaways

of environmental resources.”

190

Furthermore, Rose has described how the public trust doctrine

emerged as a way to protect certain common natural resources that were

more socially valuable as common resources than as privately owned

resources: public lakes and rivers allow commerce and confer myriad public

benefits that would not be possible in a different property regime.

191

Thus,

the doctrine serves to protect certain common property, held by disparate

“owners,” or the “unorganized public.”

192

Given the political weakness of the

unorganized public, the public trust doctrine protects broadly held social

values that enhance public sociability, such as commerce on the waterways,

and more recently, recreation in natural areas.

193

Many states, through laws or common law jurisprudence, have ratified

a “procedural” or “democratic” aspect of the public trust doctrine by

requiring state legislatures to explicitly approve any potential alienation or

modification of trust resources. For example, in Massachusetts, the land

between the high and low water marks has traditionally been subject to the

public trust.

194

Common law public trust doctrine jurisprudence in

Massachusetts has settled on the principle that a change in the use of public

trust lands, or their conveyance to private parties, is impermissible without a

clear showing of legislative approval.

195

As a result, “state agencies,

municipalities, and other governmental entities [must] obtain legislative

authorization before altering existing uses of public trust lands,” and they

are limited in their ability to directly regulate or to abrogate public trust

lands.

196

Massachusetts courts have tolerated some legislative alienation of

public lands, but have looked skeptically at claims that this authority can be

delegated.

197

In New York, the common law public trust doctrine has evolved to

encompass not only navigable-in-fact waterways and tidelands, but the



190

Rose,

Joseph Sax

supra

note 21, at 355.

191

Rose,

The Comedy of the Commons

supra

note 150, at 721, 723, 775–81.

192

Id.

at 721.

193

See id.

at 723, 779.

194

Bos. Waterfront Dev.

, 393 N.E.2d 356, 359–60 (Mass. 1979). The doctrine has evolved to

allow public access to the ocean through the tidelands and shore land, as well as access to

“great ponds,” which otherwise might be blocked by private land ownership.

Id.

at 367.

195

See., e.g.

Trio

Algarvio, Inc. v. Comm’r of the Dep’t of Envtl. Prot., 795 N.E.2d 1148, 1151

(Mass. 2003); Gould v. Greylock Reservation Comm’n, 215 N.E.2d 114, 126 (Mass. 1966) (“In

addition to the absence of any clear or express statutory authorization of as broad a delegation

of responsibility by the Authority as is given by the management agreement, we find no express

grant to the Authority of power to permit use of public lands and of the Authority’s borrowed

funds for what seems, in part at least, a commercial venture for private profit.”).

196

Wilson,

Massachusetts

supra

note 159, at 841;

see

Craig,

Eastern Public Trust

supra

note 173, at 64–68 (giving an overview of Massachusetts’s public trust doctrine and its

application).

197

See, e.g.

Moot v. Dep’t of Envtl. Prot., 861 N.E.2d 410, 420 (Mass. 2007) (holding that

“[t]he rights of the public in Commonwealth tidelands . . . cannot be relinquished by

departmental regulation”).

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protection of inland public parkland.

198

While the precise origin of the

evolution of the doctrine to parkland is unclear, New York public trust cases

have long held that public parkland cannot be sold by cities or

municipalities without state legislative authorization.

199

As early as 1871, in

Brooklyn Park Commissioners v. Armstrong

200

the court described the City

of Brooklyn as a trustee holding park lands for the purpose of public park

use.

201

The court held that the City could not sell or convey land held in trust

for public use without legislative sanction.

202

As recently as 2001, the New

York Court of Appeals reaffirmed the public trust doctrine and held that

disruption of public access to a park was a non-park use requiring state

legislative authorization.

203

Therefore, the public trust doctrine in New York

operates as a procedural constraint on non-legislative actors who could

otherwise impair public trust lands or uses.

In New York, “[g]reat ramifications flow from a determination that a

proposed activity is a non-park use,” as the process of obtaining state

legislative authorization for “parkland alienation” often takes more than a

year and can attract robust opposition from local communities and their

legislators.

204

New York generally passes fewer than twenty bills each year

authorizing parkland alienation.

205

The state legislature regularly cites its “on-

going effort to protect the public trust as it relates to the use of parklands,”

and its policy of preserving open space.

206

Therefore, a “procedural” public

trust doctrine has been integrated into the state legislative process, serving



198

See, e.g.

, Craig,

Eastern Public Trust

supra

note 173, at 85–86 (listing state public trust

protections);

2002 Annual Report

, N.Y. ST. ASSEMBLY (Dec. 15, 2002), https://perma.cc/FY8M-

YLDX (“Case law has been established which requires that any use of public parkland for non-

parkland purposes must be authorized by the New York State Legislature.”).

199

Cyane Gresham, Note,

Improving Public Trust Protections of Municipal Parkland in New

York

, 13 FORDHAM ENVTL. L.J. 259, 267–68 (2002).

200

45 N.Y. 234 (1871).

201

Id.

at 234–35 (“The title of the city, thus acquired, is impressed with a trust to hold the

lands for the public use as a park, and it cannot, of itself, convey or dispose of them in

contravention of the trust; but it is within the power of the legislature to relieve the city from

such trust, and to authorize a sale, free therefrom.”).

202

Id.

at 248. In 1920, the court in

Williams v. Gallatin

reached a similar result. 128 N.E. 121,

122 (N.Y. 1920) (“A park is a pleasure ground set apart for recreation of the public. . . . It need

not, and should not, be a mere field or open space, but no objects, however worthy, . . . which

have no connection with park purposes, should be permitted to encroach upon it without

legislative authority plainly conferred . . . .”).

203

Friends of Van Cortlandt Park v. City of New York, 750 N.E.2d 1050, 1053–55 (N.Y. 2001).

204

Gresham,

supra

note 199, at 282–85.

205

See id.

at 285 (counting less than twenty bills each year from 1990–2000). For years

2014–2016, a review of New York State Assembly Local Government Committee annual reports

shows that fewer than twenty parkland alienation bills were passed each year.

See

COMM. ON

LOCAL GOV’TS, N.Y. STATE ASSEMBLY, 2016 ANNUAL REPORT 6–8 (2016), https://perma.cc/TGT9-

ARA7 [hereinafter 2016

ANNUAL REPORT]; COMM. ON LOCAL GOV’TS, N.Y. STATE ASSEMBLY, 2015

ANNUAL REPORT 10–12 (2015), https://perma.cc/N8C4-BRSB; COMM. ON LOCAL GOV’TS, N.Y. STATE

ASSEMBLY, 2014 ANNUAL REPORT 11–13 (2014), https://perma.cc/A5P2-GYDP. In general, the state

encourages substitution of equivalent land (based on acreage or market value) for discontinued

parkland.

See, e.g.

, 2016 ANNUAL REPORT,

supra

, at 6.

206

2002 Annual Report

supra

note 198. This language appears in several of the Committee’s

annual reports.

See, e.g.

, 2016 ANNUAL REPORT,

supra

note 205, at 6.

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156 ENVIRONMENTAL LAW [Vol. 48:125

as a check on potential impairment of public trust rights by municipal actors

and others outside the legislature.

Other states have embraced a similar approach to public trust lands

management.

207

For example the California Supreme Court has articulated:

“Nothing short of a very explicit provision . . . would justify us in holding

that the Legislature intended to permit the shore of the ocean, between high

and low-water mark, to be converted into private ownership.”

208

Notably, some courts and scholars have found that even legislatures

cannot alienate certain public trust lands except in furtherance of a “trust”

purpose.

209

Thus, notwithstanding the distinction between legislatures and

other actors evident in the history of public trust doctrine jurisprudence,

even legislatures can be limited by the doctrine, as the Illinois legislature

was in

Illinois Central

, when they do not adequately protect public trust

values.

210

In short, the common law public trust doctrine has long been

interpreted by several states to constrain actions that threaten to alienate or

diminish public trust resources. State common law jurisprudence has

evolved to judicially ratify constraints on non-legislative actors with respect

to public trust land management, while also serving as a backstop against

complete legislative abdication of public trust duties. In this manner, the

public trust doctrine supplies a procedural and democratic rationale for the

structure of the Antiquities Act and OCSLA section 12(a): in limiting

presidential power to a one-way lever to conserve public resources,



207

For example, the Florida constitution has provided since 1970 that land under navigable

waters

is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such

lands may be authorized by law, but only when in the public interest. Private use of

portions of such lands may be authorized by law, but only when not contrary to the

public interest.

LA. CONST. art. X, § 11. Alabama has longstanding judicial restrictions on alienation by

municipalities.

See

Douglass v. City Council of Montgomery, 24 So. 745, 746 (Ala. 1898) (holding

that municipalities “cannot of course, dispose of property of a public nature, in violation of the

trusts upon which it is held”). New Jersey allows the state legislature to convey public trust

land only “in furtherance of the purposes of the doctrine.” Borough of Neptune City v. Borough

of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972).

208

Kimball v. Macpherson, 46 Cal. 103, 108 (1873).

209

See

Daniel R. Coquillette,

Mosses from an Old Manse: Another Look at Some Historic

Property Cases About the Environment

, 64 CORNELL L. REV. 761, 811–14 (1979) (criticizing Sax

and arguing that the public may have property rights that restrain the legislature from alienating

property except in furtherance of “trust” purposes);

Rose,

The Comedy of the Commons

supra

note 150, at 721 n.39 (not making this claim directly, but citing, inter alia,

Coquillette,

supra

);

see also

City of Berkeley v. Superior Court, 606 P.2d 362, 364–65, 369 (Cal. 1980); Patrick

Deveney,

Title, Jus Publicum, and the Public Trust: An Historical Analysis

, 1 SEA GRANT L.J. 13,

52–54 (1976) (describing the origin and transformation of the public trust doctrine in the United

States); Leonard R. Jaffee,

The Public Trust Doctrine Is Alive and Kicking in New Jersey

Tidalwaters:

Neptune City v. Avon-by-the-Sea

—A Case of Happy Atavism?

, 14 NAT. RESOURCES

J. 309, 318, 334–35 (1974) (defending the claim that tidewater resources are property of New

Jersey citizens, and therefore beyond legislative authority to alienate).

210

See

Illinois Central

, 146 U.S. 387, 452–54 (1892).

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presidents cannot diminish protected common property. The structure of

OCSLA section 12(a) and the Antiquities Act are squarely in line with the

public trust doctrine’s restraints on impairment of public lands by non-

legislative actors. The President’s “atomistic” views about national

monuments and other shared natural resources should not be the final say

with respect to long-term public use and enjoyment of them. Too much of

our common natural, historical, and cultural legacy is at stake, especially

when removing protections would open these lands to private development.

The next Part explains how courts can use the public trust doctrine as

an interpretive aid to understand the structure of the Antiquities Act and

OCSLA section 12(a). As a canon of interpretation, the public trust doctrine

would frame the analysis in favor of public trust values and preservation.

THE PUBLIC TRUST DOCTRINE AS A CANON OF STATUTORY INTERPRETATION FOR

PUBLIC LAND STATUTES

Beyond proving an illuminating analogy, the public trust doctrine

should serve as a background principle to inform our understanding and

interpretation of public land statues. As a background principle or canon of

interpretation, the public trust doctrine would lack independent legal effect,

but would act as an “interpretive aid” for other public lands laws or

regulations.

211

In order to effectuate the democratic values on which the

doctrine is based, the public trust doctrine should serve as a particular kind

of interpretative rule—requiring a “clear statement” from the legislature

before recognizing any right to impair or diminish public trust values. Thus

situated, a public trust doctrine canon of interpretation would confirm that

the Antiquities Act and OCSLA section 12(a) confer a one-way lever in the

direction of preservation to the President.

Canons of statutory interpretation have long been used by courts to

assist in interpreting statutes and regulations.

212

They have also been

criticized for their ubiquity and diversity, which renders their usefulness as

an interpretive aid to courts less clear.

213

Most famously, Karl Llewellyn

noted that for nearly every canon in circulation, another canon can be found

which states the opposite principle.

214

Despite these critiques, canons are

frequently used and cited by courts, and a legal literature has developed with



211

See

Araiza,

supra

note 27, at 697 (proposing use of the public trust doctrine as a canon

rather than a hard rule); David H. Getches,

Managing the Public Lands: The Authority of the

Executive to Withdraw Lands

, 22 NAT. RESOURCES J. 279, 286–87 (1982); Wilkinson,

The Public

Trust

supra

note 27, at 273–74, 276, 311–13.

212

See

Sunstein,

supra

note 148, at 453 (“To a large degree, interpretive principles—

including the traditional ‘canons’—serve the same function in public law. They too help judges

to construe both statements and silences; they too should not be seen as the intrusion of

controversial judgments into ‘ordinary’ interpretation.” (footnote omitted)).

213

See id.

at 451–52.

214

See

Karl N. Llewellyn,

Remarks on the Theory of Appellate Decision and the Rules

or Canons About How Statutes Are To Be Construed

, 3 VAND. L. REV. 395, 395–96 (1950) (noting

several juxtaposed canons);

see also

Araiza,

supra

note 27, at 703.

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158 ENVIRONMENTAL LAW [Vol. 48:125

respect to a normative framework for analyzing canons of construction.

215

Professor William Eskridge has set forth normative evaluative principles for

canons of statutory interpretation.

216

As Eskridge has observed, interpretive

rules that cut across statutes can assist rule-of-law values like predictability

and objectivity, democratic values, and widely held public values.

217

In the early 1980s, public lands scholars Charles Wilkinson and David

Getches argued that the public trust doctrine supports the principle that

courts should demand greater justification for administrative decisions

opening or allowing development on public lands than for protecting or

withdrawing the same lands. Wilkinson urged that the doctrine be accepted

as a means of construing the obligations of federal agencies under public

land laws.

218

He suggested that “[i]f there are unresolved questions on the

face of statutes, courts should assume that Congress intended to protect and

preserve the public resources as a trustee would.”

219

Writing decades before

the present controversy over national monuments and offshore leasing

moratoria, Wilkinson noted that such a canon of construction could assist

courts in determining the extent of protection afforded to wildlife, public

recreation, aesthetic opportunities, stream flows, and more.

220

Judicial

interpretation would point in the direction of protection and preservation if

courts were to construe public lands and environmental statutes to

effectuate Congress’s intent to act as trustee with the duty of preserving the

public’s resources.

221

Getches likewise described how the public trust doctrine could be used

akin to a canon of construction:

The theory is that public lands are to be held and managed consistently with a

trust implied from the high standards set for stewardship of federal lands in

modern statutes. Thus, as gaps must be filled and vague statutes interpreted,

the context is to be one of protection of the public interest in federal lands and

resources.

222

Writing more recently, Professor William Araiza proposed that the doctrine

be used as an interpretive canon to assist in judicial interpretation of

statutes and administrative regulations.

223

The doctrine as a canon of

interpretation would be “parasitic” on the underlying statute or regulation,



215

See, e.g.

William N. Eskridge, Jr.,

The New Textualism and Normative Canons

, 113

OLUM. L. REV. 531, 552, 576 (2013) (reviewing ANTONIN SCALIA & BRYAN A. GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS (2012)).

216

Id.

at 576.

217

Id.

at 576–81;

see also

Lisa Heinzerling,

The Power Canons

, 58 WM. & MARY L. REV. 1933,

1980–81 (2017) (citing Eskridge and applying his normative framework to Supreme Court

pronouncements).

218

Wilkinson,

The Public Trust

supra

note 27, at 311–13.

219

Id.

at 312.

220

Id.

221

Id.

at 312–13.

222

Getches,

supra

note 211, at 334.

223

Araiza,

supra

note 27, at 698.

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meaning that it would not expand any right or confer any freestanding

authority, but would assist in construing the underlying statute and favor the

public trust value.

224

As Araiza writes: “The argument is that the principle

underlying the public trust doctrine—that ‘social’ uses of natural resources

generate benefits that merit protection—is so important that it warrants

consideration when courts construe laws or review government actions that

affect those uses.”

225

Other scholars have called for a broader “green canon

of construction” that would extend beyond the narrow canon that I propose

here.

226

While a public trust canon could take various forms, one of the ways in

which it could function is as a “clear statement” requirement.

227

In its

strongest version, a clear statement requirement is a rule of narrow

statutory construction that rejects interpretations that override “substantive

values embodied in the rule, unless the statute explicitly so provides.”

228

A clear statement canon of construction would require legislature to be

specific when it wants to confer a certain power or reach a particular

result.

229

It also ensures that adequate attention will be paid by courts to the

interests that motivated the legislation at issue. The Supreme Court has used

a clear statement canon of construction on numerous occasions before

interpreting a statute to impose requirements that would otherwise break

with overriding statutory purpose.

230

As Professor Cass Sunstein has



224

Id.

at 718–19.

225

Araiza,

supra

note 27, at 704 (footnote omitted).

226

Professor Dan Farber has described how an existing federal law, the National

Environmental Policy Act (NEPA), provides textual support for a “green canon of

construction.” D

ANIEL A. FARBER, ECO-PRAGMATISM: MAKING SENSIBLE ENVIRONMENTAL

DECISIONS IN AN UNCERTAIN WORLD 125–27 (1999). NEPA section 102 provides that: “The

Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations,

and

public laws

of the United States shall be

interpreted

and administered in accordance with

the policies set forth in this chapter.” 42 U.S.C.

§ 4332 (emphasis added). Those policies are

listed in NEPA section 101 and include, “fullfill[ing] the responsibilities of each generation as

trustee of the environment for succeeding generations” and “preserv[ing] important historic,

cultural, and natural aspects of our national heritage.”

Id.

§ 4331(b). Farber argues that this

language can be viewed as establishing a “green canon of construction” that judges should

apply in interpreting ambiguous environmental and public land statutes. F

ARBER,

supra

227

See id.

at 721.

228

William D. Popkin,

Law-Making Responsibility and Statutory Interpretation

, 68 IND. L.J.

865, 880–81 (1993);

see also

Michael E. Solimine,

Rethinking Exclusive Federal Jurisdiction

, 52

PITT. L. REV. 383, 385 (1991) (noting that Justice Scalia’s concurrence in

Tafflin v. Levitt

, 493

U.S. 455, 469–473 (1990), argued that the presumption in favor of concurrent federal and state

jurisdiction should only be considered rebutted if Congress explicitly provided for exclusive

federal jurisdiction in the statutory text, or in other words, provided a clear statement).

229

See

Sunstein,

supra

note 148, at 457–58 (“Some principles designed to fulfill institutional

goals require a ‘clear statement’ before courts will interpret a statute to disrupt time-honored or

constitutionally grounded understandings about proper governmental arrangements. Clear-

statement principles force Congress expressly to deliberate on an issue and unambiguously to

set forth its will; they commonly appear in statutory interpretation as a subset of the category of

interpretive norms.”).

230

Clear statement rules are commonly applied in federalism cases. For example, in

Atascadero State Hospital v. Scanlon

, 473 U.S. 234 (1985), the Supreme Court stated that

Congress may abrogate the states’ Eleventh Amendment immunity “only by making its intention

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160 ENVIRONMENTAL LAW [Vol. 48:125

explained, a clear statement canon is similar to a principle in favor of

narrowing agency discretion when there is any doubt as to statutory

authority, as such a principle “works against regulatory pathologies

produced by factional power or self-interested behavior of bureaucrats.”

231

Treating the public trust doctrine as a “clear statement” canon of

interpretation for public land preservation statutes makes sense, given how

the doctrine has developed in some states to require, quite literally, a clear

statement from legislatures before allowing the modification or impairment

of public trust lands or trust uses.

232

This is more than mere word play; a

public trust canon of construction that requires a clear statement from

Congress before accepting an interpretation that would upset statutory

purpose would serve to protect socially valuable common resources and the

interests of disparate resource owners, like the unorganized public, which

Rose identified as underpinning the public trust doctrine.

233

Moreover, a

clear statement public trust canon would guard against the abuses or biases

of lone actors, which Sax identified as a concern motivating the doctrine,

234

as well as factional or bureaucratic self-interest.

235

Running a potential public trust doctrine canon of interpretation

through Eskridge’s normative framework for evaluation, as a clear

statement principle, the canon would promote objectivity, at least in part, as

it would not substitute any interest groups’ views for another; it simply

requires a clear statement before interpreting a statute to infringe on pre-

existing public land protections. The canon would serve democratic values,

as it would vest primary authority for public land decision making with the

most democratic of the three branches, Congress, unless the statute

explicitly indicated otherwise. Finally, the canon would protect widely

shared public values, such as public land preservation. Indeed, the public

trust doctrine is premised on the notion that certain lands and resources are

common to all, and incompatible with private ownership and exploitation.



unmistakably clear in the language of the statute.”

Id.

at 242. This canon of construction, the

Court explained, was dictated by “[t]he fundamental nature of the interests implicated by the

Eleventh Amendment.”

Id.

;

see

Ernest A. Young,

The Rehnquist Court’s Two Federalisms

, 83

EX. L. REV. 1, 16 (2004) (“The [Supreme] Court’s less flashy clear statement rules may be an

even more important set of examples. Those rules enhance the political and procedural checks

on federal lawmaking in a number of sensitive areas, including regulation of traditional state

functions, abrogation of state sovereign immunity, imposition of conditions on federal funding,

and preemption of state law.”);

see also

Solimine,

supra

note 228, at 401–02, nn.122–27.

231

Sunstein,

supra

note 148, at 458.

232

See

discussion

supra

Part IV. And even then, legislatures themselves may be unable to

diminish or alienate public trust resources where doing so would be incompatible with

protecting the public’s interest in the lands and waters remaining.

See

Illinois Central

, 146 U.S.

387, 452–53 (1892) (explaining that State control over navigable waters is “title held in trust for

the people of the State,” which requires legislators to act in the public’s interest when enacting

laws that diminish or alienate public trust resources).

233

See

Rose,

The Comedy of the Commons

supra

note 150, at 721–23. Of course, there are

other forms that a public trust canon could take; however, a clear statement requirement aligns

with past judicial interpretations of the doctrine.

See

discussion

supra

Part IV.

234

See

Sax,

The Public Trust Doctrine

supra

note 20, at 531, 534.

235

Sunstein,

supra

note 148, at 458.

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As a canon, the doctrine would give appropriate weight to widely shared

values, where doing so would be consistent with legislative text and

purpose.

In short, a public trust doctrine canon of interpretation would serve to

protect social and environmental values from infringement. Applied here, a

public trust canon would confirm that the Antiquities Act and OCSLA

section 12(a) confer a one-direction power to the President in the direction

of preservation, consistent with the statutes’ plain text, legislative history,

and relevant legal opinions.

In the final Part, this Article describes how the public trust doctrine

illuminates the wisdom of the structure established in OCSLA section 12(a)

and the Antiquities Act.

VI.

THE WISDOM OF ONE-WAY EXECUTIVE BRANCH LEVERS IN THE ANTIQUITIES

ACT AND OCSLA SECTION 12(A)

Both the Antiquities Act and OCSLA section 12(a) provide one-way

levers for the President to protect special places for the benefit of present

and future generations. Congress did not give the President the power to

undo or diminish these reservations of public land. The drafters of the

Antiquities Act intended for the President to be able to act decisively to

make conservation decisions through national monument designations.

236

And the drafters of OCSLA section 12(a) intended to confer a broad power

to reserve resources of the Outer Continental Shelf, including for

conservation purposes.

237

The legislative branch serves as a check on these

executive branch powers by retaining the authority to revoke or modify

national monument designations and offshore leasing withdrawals through

legislative action.

Until now, no president has ever rescinded a permanent offshore

leasing withdrawal made by a prior president pursuant to section 12(a) of

OCSLA. And until now, no president has embarked upon a far-reaching

review of national monuments designated by his predecessors and

announced steep reductions in monument size, even in the face of

overwhelming public support for maintaining monuments.

238

The fact that such actions are unprecedented is unsurprising, because

the President does not possess the power to rescind or diminish these

protections. Congress retained these powers exclusively, pursuant to its

plenary authority over public lands set forth in the Property Clause of the

U.S. Constitution. This conclusion is bolstered by an examination of the

plain text of the statutes, their legislative history, relevant attorney general

opinions, as well as additional public land statutes passed before and after



236

S. REP. NO. 106-250, at 1 (2000);

see also

APA, 5 U.S.C. §§ 551–559 (2012) (laying out extensive

procedures for notice and comment rulemaking that apply to agencies).

250

While the broad electorate would serve as one check on this authority, through the

power to select another president later, for presidents in their final term, this check is less

powerful.

251

See

YOO & GAZIANO, PRESIDENTIAL AUTHORITY,

supra

note 22, at 7–8.

252

See

U.S. CONST. art. II, § 2, cl. 2 (“He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two thirds of the Senators present

concur . . . .”).

253

See id.

, art. IV, § 3, cl. 2.

254

See

Alabama

, 347 U.S. 272, 273 (1954).

255

See

discussion

supra

Parts III.B–.C.

256

See

Getches,

supra

note 211, at 313.

257

236 U.S. 459 (1915).

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2018] MONUMENTAL DECISIONS 165

The Executive . . . withdrew large areas in the public interest. These orders

were known to Congress, as principal, and in not a single instance was the act

of the agent disapproved. Its acquiescence all the more readily operated as an

implied grant of power in view of the fact that its exercise was not only useful

to the public but did not interfere with any vested right of the citizen.

258

The Court noted that “the withdrawal orders prevented the acquisition of

any private interest in such land.”

259

Thus, implied executive branch

authority to reserve public lands served to

prevent

private interests from

controlling and exploiting public land. This implied authority to withdraw

and protect public lands existed for so long, until expressly repealed by the

Federal Land Policy and Management Act, because it fit neatly in line with

the stewardship goals of the federal government and did not intrude upon

the legislative branch’s ultimate prerogative over public lands.

260

As Getches

explained: “To allow [private] uses without some delegation of authority

from Congress arguably usurps the authority of the legislative branch under

the Property Clause. To deny private uses, on the other hand, preserves

congressional prerogatives and flexibility.”

261

In short, the public trust doctrine illuminates the wisdom of the

structure established in OCSLA section 12(a) and the Antiquities Act, and

shows that it is not novel. The doctrine provides important context for a

history of public lands jurisprudence in which courts demand greater

justification for actions allowing development on public lands than for

protecting the same lands. Indeed, the doctrine can be applied as a canon of

interpretation that requires a “clear statement” by Congress before

interpreting a statute to allow actions that could otherwise impair public

lands and resources.

VII.

CONCLUSION

President Trump has already taken actions with respect to public lands

that this Article argues no president has the authority to take. These actions

include reversing presidential withdrawals of Outer Continental Shelf areas

from oil and gas leasing and embarking on a far-reaching “review” of

existing national monuments, culminating in sharp boundary reductions.

262

Moreover, the Trump Administration may attempt to take additional actions,

likewise without legislative authority, that threaten the preservation of our

nation’s protected lands.

Ultimately, the legality of these executive branch actions will be

decided by the federal courts. In examining the extent of presidential power

over protected public lands as set forth in the Antiquities Act and OCSLA

section 12(a), courts should look first to the statutory text and constitutional



258

Id.

at 475.

259

Id.

at 479.

260

See Getches

supra

note 211, at 287–88.

261

. at 287.

262

See

discussion

supra

Part II.

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166 ENVIRONMENTAL LAW [Vol. 48:125

framework, but also at the broader context of public land management,

including the public trust doctrine.

The powers conferred to the President in the Antiquities Act and

section 12(a) of OCSLA operate in one direction only: towards preservation.

Presidents do not have the authority to rescind national monument

designations or to restore previously withdrawn areas to offshore leasing;

Congress retains this authority through its plenary power over public lands

as articulated in the Property Clause.

The Antiquities Act and OCSLA section 12(a) reflect the wisdom of

their drafters in conferring a one-way executive branch power to preserve

federal lands. While allowing relatively unencumbered presidential actions

to protect special places and natural resources, they reserve to Congress the

more “monumental” power to modify or abolish national monuments and to

return withdrawn offshore lands to disposition by fossil fuel leasing. This

interpretation is consistent not only with statutory text, the relevant

constitutional framework, and legislative history, but also with the enduring

national narrative that public lands should be regulated according to

principles of democratic decision making, especially where important public

trust interests are at stake.