Trump’s monument review is as secretive as Obama’s designations

Presidential use of the Antiquities Act is ripe for abuse, as major decisions impacting vast public lands, natural resources, property rights, livelihoods and private industry are left to the sole discretion of the president. After such a unilateral designation, the president does not need to substantiate his decision in any meaningful way, beyond the use of a few magic words on the face of the proclamation.

It seemed like a positive step when President Trump in April issued an executive order seeking public input for a review of national monument designations over the last two decades. But it now appears that any hope for additional transparency may have been premature.

{mosads}Under the executive order, Interior Secretary Ryan Zinke was charged with producing a final report outlining his review and providing recommendations. This was no small task, as these monuments cover more than 11 million acres and 257,000 square nautical miles, and are associated with a reported 2 million-plus public comments.

However, instead of submitting a final, publicly available report, Secretary Zinke chose to submit only a draft report to the White House, adding more fuel to one of the biggest criticisms of the Antiquities Act — a total lack of transparency in the process. 

It has been convenient for recent presidents to expand their environmental legacies by keeping the decision-making process behind closed doors. Unlike other public lands management laws, which require congressional approval and continuing oversight and public input, the Antiquities Act requires only a president’s discretionary declaration to indefinitely modify access to and use of public lands.

Although valid declarations under the Antiquities Act require a determination that the landmarks, structures and objects defined as national monuments are of historic or scientific interest, the president is not required to establish these facts or present proof of such determination. Additionally, the president need only state, not prove, that the area reserved to protect the declared monument is “confined to the smallest area compatible with the proper care and management of the objects to be protected,” a statutory requirement under the law.

This is particularly troubling when a monument is designated despite the government’s own scientific information contradicting its necessity. This was the case when President Obama declared a vast ocean monument, called the Northeast Canyons and Seamounts Marine National Monument, in the Atlantic off the coast of New England.

Since last fall, my organization, Cause of Action Institute, has been conducting an investigation into the use and misuse of the Antiquities Act, having sent some 11 Freedom of Information Act requests to various agencies involved in the process. Through these requests, the institute has obtained thousands of never-before-released records that, if discussed publicly or made subject to congressional oversight prior to declaration of the monument, could have possibly led to modification or halted the declaration altogether. 

For example, a confidential July 2015 report from the National Oceanic and Atmospheric Administration (NOAA) regarding a proposed monument (roughly the same size and location as the declared monument) indicates that certain types of pelagic fishing gear do not impact seafloor organisms or habitats.

The report also indicates that there were no declared critical habitats in the area and that the local regional fishery councils had made great strides in protecting deep-sea organisms and habitats from any potential adverse effect of fishing. Despite these facts, all commercial fishing was banned when the monument was eventually declared, harming the livelihoods of fishermen who relied on the canyons area to make a living. This unfounded ban is completely divorced from scientific reality.

NOAA and the White House also appear to have ignored inquiries from fishermen and stakeholders and did not release any details of the proposed monument prior to the only public meeting on the monument. And that one public meeting appears to have been a sham.

Records we have obtained show that representatives from the environmental NGOs and academia were well-briefed on the details of the proposed monument prior to the meeting, which allowed them to prepare and articulate their support. In contrast, requests from the fishermen for information prior to the meeting went unanswered. Those who stood the most to lose were thus deprived of the opportunity to fully participate in the decision-making process.

As the review process moves forward, Zinke should not only release the “draft” report publicly, he should also release all records related to recent monument declarations. Further, Congress should amend the Antiquities Act to require public comment periods and congressional oversight prior to declaration. The president should be required to set forth the factual and scientific basis for all determinations and provide for judicial review.

Holding window-dressing public meetings and soliciting public comments that never see the light of day have allowed government officials to assert that monument declarations have been transparent, but the facts show otherwise. It’s time to fix the Antiquities Act and shine a light on the process. Unfortunately, Zinke’s non-public report only adds to the problem.

Kara McKenna is counsel at Cause of Action Institute, a Washington, D.C. non-profit oversight group advocating for economic freedom and individual opportunity. 

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