Law professor debunks Utah’s (and Cliven Bundy’s) bizarre legal theories about public land

Class is in session.

Citadel Ruins, Bears Ears National Monument, Bureau of Land Management

In the latest episode of the Center for Western Priorities’ Go West, Young Podcast (subscribe on iTunes | Google Play | Stitcher | TuneIn), University of Colorado law professor Mark Squillace gives a succinct but comprehensive smackdown to a string of arguments that public lands extremists have espoused for years.

From whether President Trump has the authority to erase Bears Ears National Monument from the map (spoiler: he doesn’t) to whether Utah politicians can force Americans to give up their public land (they can’t), Professor Squillace’s interview is a harsh reality check for anyone who thinks the bizarre legal playbook of Bundy family allies like KrisAnne Hall and Alex Jones could hold up in court.

The following excerpt from the podcast has been lightly edited for clarity.

On the Antiquities Act and national monuments

Aaron Weiss, Center for Western Priorities: I want to start with the Antiquities Act. It’s certainly at the top of mind because of Bears Ears. The Utah congressional delegation insists that if the Antiquities Act gives the president the power to create a national monument, it must therefore give the president the power to erase one. Is that true?

Professor Mark Squillace

Professor Mark Squillace, University of Colorado: Almost certainly not, or at least the current law suggests that it’s not. It’s an interesting story because the authority to make decisions regarding public lands comes from the Property Clause of the Constitution, and it essentially gives the full power — what the Supreme Court says is “power without limitations” — to the Congress, so Congress gets how to decide how to manage our public lands.

Congress, of course, can delegate some of that power to the executive branch. Sometimes Congress has granted to executive branch officials the power to withdraw lands for particular purposes, and in granting that authority sometimes it has allowed the president or some other executive branch official to modify those withdrawals or revoke them.

So we have examples from other laws where Congress has indeed granted broad powers to create or revoke or modify these kinds of withdrawals. The Antiquities Act is interesting and somewhat unique because it grants what I consider “one way” withdrawal authority. It empowers the president the power to proclaim and preserve national monuments that contain objects of scientific and historic interest, but not to modify or revoke them.

And there is an opinion from the attorney general of the United States from 1938 that I think does a pretty good job of analyzing this question, and essentially takes the position that based upon these other laws that I mentioned previously, that the Antiquities Act gives the president only the authority to proclaim or reserve national monuments and not the power to revoke them.

CWP: I suppose the other important part of that is “modify” — with Rob Bishop [chairman of the House Natural Resources Committee] saying that the president could, if he wanted, shrink Bears Ears by 10, 50, 90 percent, do you think that would probably get challenged and tossed out?

Professor Squillace: One could make an argument that some previous president did not limit the proclamation to the smallest area compatible, as required by the Antiquities Act. I personally think that would require that the previous president made essentially a mistake of fact.

Because these types of proclamations involve judgment calls that one president makes, and if the president has designated or set aside a particular area because he thought that area contained these objects of scientific or historic interest, then I don’t think it would be reasonable that some other president could come along and take a different view.

If however, there was a mistake of fact — if a president had set aside an area thinking that a particular object was within that area and it was not, then it seems to me that kind of mistake of fact could be grounds to change a monument. Short of that, however, I don’t think that you can distinguish the modification issue from the revocation issue.

CWP: You’re a student of history as much as law. How unprecedented would it be if President Trump tried something like that — either rescinding or shrinking [a monument]? How would that end up playing out in the courts?

Professor Squillace: It’s a really interesting question, because we do have some experience with a president modifying proclamations that were designated by prior presidents. And what we can say is that none of these changes were challenged in the courts. So we don’t know how a court may view a decision.

The most famous of the modifications that we’ve seen happened way back around 1915 by Woodrow Wilson. It was a modification of what was then called Mount Olympus National Monument — now Olympic National Park — in the state of Washington. The original monument had been proclaimed by Teddy Roosevelt; it included something like 600,000 acres of land. There was a lot of pressure on Wilson to reduce the size of the monument, really because of the mining and timber interests that were in that area.

He cut the monument pretty much in half as a result of the pressure he received from the mining and logging industries. The environmental community was quite upset with the decision by Wilson, but they never challenged it in court, so we don’t really know how a court might view it. Obviously it was a controversial decision and at least it gives some kind of precedent. What I would say, though, is that’s the classic case where it doesn’t seem to me to fit within the scope of authority granted under the Antiquities Act.

There is a second example, probably the other largest example of a modification; I think it was Franklin Roosevelt that reduced the size of Grand Canyon National Monument, again a monument that had originally been proclaimed by Teddy Roosevelt, and it was a somewhat more modest reduction, I think it involved about 70,000 acres of land that was taken out, and once again, that decision seemed to be done at the behest not of concerns about whether the objects needed to be protected, but rather the grazing interests in the area that did not want those lands included within the monument.

So those are just two examples where I do not think the modifications were made consistent with the terms of the Antiquities Act, and had either of those decisions been challenged, it would have been interesting to see whether the court might have reversed on the grounds that the president lacked the authority to carry out those modifications.

CWP: So the bottom line: you think the strongest, or only valid reason, would be a mistake of fact — the president thought he was including something that was not actually in the monument.

Professor Squillace: That’s exactly right.

On the federal government’s right to own land

CWP: I want to take a step back and talk about something we see all the time on Facebook. We see these folks who insist the federal government can’t own land, like Cliven Bundy and his sons, who are about to stand trial in Nevada.

Cliven famously rejected the right of the federal government to “even exist.” His followers almost all deny that it’s constitutional for the federal government to own land, or as much land as the American people do today. What does the Constitution actually say about land ownership?

Professor Squillace: Well again, this all traces back to the Property Clause of the Constitution, which, as I said, the Supreme Court has interpreted to give the Congress what they describe as “plenary authority,” or authority without limitation, to manage our public lands. There doesn’t seem to be any basis for these claims that somehow these lands should be turned over to the states or that the federal government is obliged to turn these lands over to the states.

Certainly congress has that power. Congress could, on its own, decide to turn the lands over to the states, and on occasions, with relatively small parcels, Congress has done so. And so this notion that somehow Utah and other states thought they were entitled to claim these lands that were clearly part of the federal public domain, it seems to me wrong. These states agreed to allow the federal government to keep those lands.

CWP: And with the enabling acts, where the people of each state forever disclaim any claim to those lands — was there ever a timeline, either explicitly or implicitly spelled out, for when the federal government would hand over the rest of the public lands within the state?

Professor Squillace: Absolutely not. There is language that suggests that the federal government maintains control over those lands unless and until they are disposed of. I think the state of Utah has tried to claim that somehow that implies that the government was obliged to dispose of those lands but there is no real indication that that was the real implication of that language. And indeed the word “dispose” does not necessarily connote that type of result for those lands.

CWP: The KrisAnne Halls and the Alex Joneses of the world like to point to something different: the Enclave Clause in the Constitution (Article I, Section 18, Clause 17). That’s the one that mentions “forts, magazines, arsenals, dockyards, other needful buildings” as proof that the federal government cannot own other land other than these enclaves. Has that, I assume, been litigated at some point? Or is that not even relevant?

Professor Squillace: I don’t see how that’s relevant. Again, you can’t just look at the Enclave Clause in isolation when you have a separate important clause that specifically grants to the Congress the authority to manage public lands.

As I noted, the Supreme Court has passed on the property clause on numerous occasions and has been quite explicit about the breadth of federal authority over public lands. There has been no indication whatsoever on any of these decisions that somehow the federal government’s authority over the public lands is somehow compromised or limited by the Enclave Clause. Quite the contrary.

Probably the most famous of these decisions, or at least recent decisions, is United States vs. New Mexico, in which the Supreme Court made clear that the government’s power over public lands is essentially without limitations.

CWP: So then by that notion, any Tenth Amendment arguments — that any powers not granted explicitly in the Constitution fall to the states — the Tenth Amendment does not come into play because you have the Article IV Property Clause.

Professor Squillace: That’s correct.

CWP: Is there anyone in the serious legal community—any established law professors—making counter-arguments to this, or is it truly the Alex Joneses, KrisAnne Halls, fringes of the world?

Professor Squillace: Well, the state of Utah has been leading an effort to try to find a legal argument. They have appropriated a fair amount of money and hired a law firm to construct arguments. And there are arguments out there that I suppose you would have to say are being made by “serious lawyers,” but they’re serious lawyers who are being paid to make a particular argument, and frankly I don’t think the arguments that they have come up with are particularly compelling.

I suppose you can get a lawyer to argue any point of view. That’s the nature of our legal process here in the United States. But I don’t know that it necessarily translates into a legitimate or appropriate kind of argument. This is just not one of those issues that strikes me as one where there is a lot of serious debate.

CWP: You’re not seeing law review articles from the great legal minds of our era saying that the Supreme Court got this wrong for 185 years?

Professor Squillace: No. I don’t see a serious argument on the side of the states in this case.