President Trump's Executive Order on National Monuments (Audio)

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tenths of one percent. I'm Charlie, that's a Bloomberg business flash. Thanks Charlie, you're listening to Bloomberg Law. I'm Greg Storring Washington with Jim Grasso in New York. Three weeks before leaving office, Barack Obama designated two new national monuments. One of them was Bear's Ears in Utah, where Obama set aside one point three five million acres that included a hundred thousand archaeological sites and areas considered sacred to Native

American tribes. This week, Donald Trump ordered a review of that national monument and more than two dozen others created over the past twenty one years. It's a process that could end up with Trump trying to rescind Obama's designation or at least scale back the monument. But there are serious legal questions about what authority Trump has. No president has ever tried to rescind the designation of a national monument.

With us to talk about that is Charles Warren. He's a partner at Cramer Levin, lef Talis and Frankel and John Lushy. He's a professor at the University of California Hastings College of Law, informally the top lawyer in the

Interior Department, John Lushy. Uh, let me start with you, Um, where does the authority come from in the first place for a president to designate an area of land or an area of the sea as a national monument comes from the Antiquities Act of nineteen o six statute Congress passed back then that has actually been one of the most used and most successful conservation statutes in American history. It applies only to federal land, does not apply to

state or private land. But it authorizes the president to set aside uh and protect objects of historic or scientific interest on those lands. Every president are practically every president since nineteen o six has used this authority. Presidents of both parties and set aside well over a hundred million acres of land on shore and several hundred millions of acres of land off shore. Chuck, The that statute doesn't talk about taking away the designation of a national monument.

But in nineteen thirty eight, when President Franklin Roosevelt wanted the authority to do so, tell us what the Office of Legal Counsel of the Department of Justice to him. Yes, the Department of Justice really in said that they he did not have the authority to do that because the establishment of the National Monument, in accordance to the Antiquities Act, is a one way creation of a trust over the resources. The presidents then wouldn't have the power to revoke that reservation.

That's really There haven't been any court cases that specifically have dealt with that power. But that was the Attorney General and the the Office of Legal Counsel's opinion that's been rendered, and there's nothing to contradict that opinion. And in fact, although presidents have once in a while narrowed the scope of some of these monuments, uh not by a lot, but they have never sought to take back,

you know, the ablishment of one of these national monuments. John, Let's let's stick for a moment on on the idea that a president might completely resin as opposed to scale back at national monument. Does that UM opinion back in the thirties make sense to you? Why should it be? I mean, why shouldn't this be Like, you know, president appoints somebody, a president can fire somebody. Why can't a

president undo an action taken by a previous previous president. Well, I think it has to do with the special field of public land law, which has always been somewhat different from other areas of federal law. And around the same time that Congress passed the Antiquities Act in nineteen o six, it passed a number of other statutes that authorized the president to take action to protect lands federal lands in

one way or another. And in those other statutes it said it gave the president authority to set aside or unset aside. In other words, it specifically said you can do this or you can revoke this. But in the Antiquities Act it stands out because it's one way. It says you can set aside and protect land, but it didn't say you could unprotect them. And that's exactly the reasoning of the Attorney General. Uh, He's basically said, look, this is a delegation from Congress to take protective action.

It's not a delegation to unprotect UH and so you can't do it. It's a it's a pretty powerful argument, I think. Obviously, you know, you never can predict what the courts are going to do. But I think there's grave risk if the President wants to take action to resand the monument. Chuck about forty five seconds here. National monument status has been revoked from only eleven sites, and each of those cases Congress took away the site's national

monument status. Is that a strong indicator that it's Congress that should do this. Yes, I think, as John, as John said, it really is Congress that has the authority over public lands in the United States, and they can do whatever they want. But I think it's a stretch to say that the president, acting on his own, can

revoke one of these things. We're talking with Charles Warren of Cramer, Levin of Thalas and Franco, and John Leshi of the University of California Hastings College of Law in San Francisco about Donald Trump's announcement this week that he is considering UH or is ordering a review of national

monuments created by previous presidents, including Barack Obama. When we come back in a moment, I want to ask them about whether, even if Donald Trump can't can't revoke a designation, whether he might at least be able to shrink the size of something like the one point three five million acre national monument in bears Ear in U Talk Bears Ears National Monuments. But first I'll check on the latest world of national headlines with Limburg's Nancy Lions here in

the newsroom in Washington. Nancy thanks. President Trump says, even though it's been ninety nine days, his administration is making great strides and getting a lot of things done. I don't think there's ever been anything like this. It's a full standard a hundred days. But I have to tell you, I don't think anybody has done what we've been able to do in a hundred days. So we're very happy. The President spoke after signing an executive order aimed at

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nestack is higher. We've got the ten you yield at two point three, gold up to ten, the ounce to twelve sixty eight gain there of two tents of one percent, and West Texas Intermediate Crude up sixteen cents of errol on w T I again there are three tenths of one percent. So the SMP down four that's a drop of two tenths of one percent. Down Industrials down thirty six, also a drop of two tenths of one percent. Nez stack barely budgeting it is higher by less than a point.

I'm Charlie Peltan that June Grosso and Greg Store is a Bloomberg Business Flash. Thank you, Charlie. Bloomberg Laws brought to you by Sector Spider et F. Why by a single stock when you can invest in the entire sector. Visits sector sp drs dot com or call one six Sector e t F. Greg. Thanks June. We're talking about the announcement this week that Barack that Donald Trump said he's gonna order a review of the national monuments designated

by his predecessors, including Barack Obama. Trump said this week that Obama committed a quote agreedious to U a federal power when he designated some vast areas and put them off limits to development. The Antiquities Act does not give the federal government unlimited power to lock up millions of acres of land and water, and it's time we ended this abusive practice. We're speaking with John Lushy, He's a professor at the University of California Hastings College of Law,

and Charles Warren, a partner at Kramer Levin Um. Chuck uh the um tell us what it means to have something designated as a National monument. What are the practical consequences of that sort of designation? Well, you know they

set them, they set these lands aside. Basically, you know, that's taken the historic landmarks or prehistoric structures or objects of scientific interests, and it protects these things from these areas rather from incompatible activities such as mining and leasing and logging and grazing and fishing and other kinds of

commercial uses essentially, And that's really what it means. And that's obviously what some of the people who are against these kinds of designations, you know, are are concerned about. And John in an NBACY News survey monkey Pole in February respond and said more US land should be protected by national parks. Of the amount currently protected was right and only nine said less land should be protected. So it seems as if the American public is in favor

of these uh monuments and public lands. If this goes through for some reason, do those lands go back to the states and then do the states have the opportunity to do whatever they want with them? No, they would remain in federal hints. But you're wrong in saying they go back to the states. The states never owned these lands,

do you nided states always owned these lands. The United States acquired these lands usually from foreign governments with the blood and treasure of everybody, uh, And so the states have no claim to these lands. If a monument is rescinded. Uh, they remain federal lands, but the protections of those lands are lessons. I should also, uh say, response to something Charles said, these lands are generally open to the public

for recreation. They're also opened generally to grazing. What is restricted are those uses, uh sort of intensive industrial uses that are inconsistent with protecting these cultural and historic and

scientific objects. So each monument contains its own kind of little management regime built around the resources that you're trying to protect, which may include vast landscapes, or it may include very specific sites like the Statute of Liberty was actually first satisized and national monuments by a president Chuck the antiquity access that the national monument should be quote confined to the smallest area compatible with proper care and

management of the objects to be protected. Um, if there's a good argument that, uh, say, the monument in Utah one point three five million acres is bigger than it needs to be, is it clear that Donald Trump would have a theory to authority to make that smaller. Not really clear, but there there is precedent for that, because presidents have, on occasion, not many occasions, made some of

these national monument areas smaller. Um the going back to the opinion the Attorney General, you know, he that opinion did say that you might be able to do that, but it's apparently not considered one of the strongest points of the opinion in view of developments that have happened

in the future. And I think I think you have to justify saying why you had, you know, narrowed the area and if if the mind you know, if the monument is still designation, is still protecting the area from the things you want to protect it from, And that's what it says. It says with you know, with the small area compatible with proper care and managements of the objects to be protected. And so that's that's the question, right if if something is you try to narrow the area,

are things still being protected? And if you allow mining or drilling and now you could I'm sure make a good case that these places will not be protected in the same way. So I think I think you're gonna be inviting a major lawsuits if if you try even to diminish the area it was deficated. John, What kind of claims could we see in lawsuits if Trump does

go forward with this plan? Well, either a recision or a reduction would be certainly be challenged by probably local groups who want these areas protected, by tribes of Pho, particularly interested in in the bears Ears, by recreational interests, by outdoor recreation industry, which is a very powerful economic force.

So you'll see lots of opposition and uh many potential and probably real plaintiffs in lawsuits if if the president uh follows through and based on based on the grounds we've just been talking about that the Antiquities Act is really a protection statute. It and it doesn't give a president the power to unprotect an area, which is what he would be doing if he took accident under this. So it's a very straightforward lawsuit and uh, and I'm sure we'll see this layout in the courts if the

president wants to do this. I should also say in the clip you put played the president and we're going to end this abusive power. This is something that every president has done, beginning with Theodore Roso you know the secretary in the Interior Zinky, claimed to be a big fan of Theodore Roosevelt. Well, uh, Diodo Roosevelt did an eight hundred ac or grand Canyon National Monument, Nike Neil eight. He set the pattern here that has been followed ever

since for these these large scale protections. John, we're gonna have to leave it there, Thank you so much. John Leshie of the University of California Hastings College of Law and Charles Warren of Cramer Levin talking about the prospect that Donald Trump may scale back or even recent in some national monuments designated by his predecessor presidents. You're listening to Bloomberg Law. This is Bloomberg