THE TRUMP ADMINISTRATION AND LESSONS NOT LEARNED FROM PRIOR NATIONAL MONUMENT MODIFICATIONS

On December 4, 2017, President Trump issued a presidential proclamation that "modified and reduced" the 1.7-million-acre Grand Staircase-Escalante National Monument in Utah, carving the original monument into three smaller monuments. On the same day, President Trump "modified and reduced" the 1.3-million-acre Bears Ears National Monument, also in Utah. The President's actions, which reflect the two largest presidential reductions to a national monument that have ever been made, open lands excluded from the monuments to mineral exploration and development, reduce protection for resources within the replacement monuments, and diminish the role that Native American tribes play in management of Bears Ears. President Trump's decision to drastically reduce the two monuments has spurred a vigorous and ongoing debate over the legality of his actions, centering on whether the Antiquities Act and congressional actions implicitly granted the President with authority to revisit and revise prior monument decisions. This Article undertakes a survey of prior presidential reductions to determine whether, and to what extent, there exists a historical pattern of presidential action sufficient to support the congressional acquiescence argument. I find that the historical record does not support the argument that Congress generally acquiesced to reductions by proclamation. Most prior reductions were small in size, and many, if not most, likely did not rise to the attention of Congress. Congress repeatedly voted down bills to grant Presidents the authority to reduce monuments, and more than fifty years have passed since the last presidential reduction to a monument. During the intervening decades, Congress expressly constrained the executive branch's discretionary power over public lands. Past reductions, moreover, can be classified either as minor boundary adjustments to early monuments that were designated on unsurveyed lands, revisions intended to improve resource protection rather than to accommodate commodity production, or as adjustments made under the President's Article II war powers in relation to the two World Wars. President Trump's reductions, which are the largest in history, check none of those boxes and therefore lack the historical precedent needed to support congressional acquiescence.