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The 53,804-acre Camp Hale-Continental Divide National Monument, near Leadville, Colorado, will be managed by the U.S. Forest Service, which is charged with creating a plan to protect cultural resources including abandoned bunkers in the Pando Valley. Nearly 15,000 soldiers were trained at Camp Hale in mountain fighting techniques, including climbing, skiing and cold-weather survival. (Dean Krakel, Special to The Colorado Sun)

Camp Hale is Colorado’s newest protected landscape. President Joe Biden is expected to travel Wednesday to the high mountain valley where thousands of soldiers trained for World War II to designate the 53,804-acre Camp Hale – Continental Divide National Monument.

Legal challenges to the 1906 Antiquities Act used to create the new monument are as old as the law. Could a future president undo Biden’s designation, especially if a Republican moves into the White House in 2025?

The monument includes portions of land that would have been protected by the Colorado Outdoor Recreation and Economy Act — or CORE Act — and will commemorate 10th Mountain Division veterans whose training in the rugged mountains around Camp Hale north of Leadville enabled decisive victories in WWII.

The CORE Act has stalled in Congress for four years without Republican support in the Senate. Biden used of the 1906 Antiquities Act to create the monument early Wednesday, sidestepping Congressional inaction on the lands bill.

A map of the Camp Hale-Continental Divide National Monument. (U.S. Forest Service handout)

 Colorado state Sen. Kerry Donovan, a staunch supporter of the CORE Act whose grandfather, Bill Mounsey, helped train soldiers at Camp Hale in the 1940s, said using the Antiquities Act to protect the historical military compound “is entirely appropriate.”

“That’s why the Antiquities Act exists,” she said. 

There’s a lingering legal issue surrounding the Antiquities Act. While courts have repeatedly affirmed a president’s ability to create monuments of just about any size they wish, a lawsuit in Utah could determine whether presidents can reduce the size of monuments. 

This July 9, 2017, photo, shows a view of Grand Staircase-Escalante National Monument in Utah. Utah state and county officials sued the Biden administration Wednesday, Aug. 24, 2022, over the president’s decision last year to restore two sprawling national monuments on rugged lands sacred to Native Americans that President Trump had downsized. (Spenser Heaps/The Deseret News via AP, File)

Presidents have shrunk monuments before. Most recently Republican President Donald Trump reduced the size of Utah’s Grand Staircase-Escalante National Monument by 45% and the Bears Ears National Monument by 85%, removing more than 2.2 million acres Presidents Bill Clinton and Barack Obama, both Democrats, added when they created the national monuments in 1996 and 2016.  

Lawsuits challenging Trump’s Utah reductions could set the stage for either further buttressing the presidential powers enabled by the 1906 Antiquities Act or reduce the land-protecting tool to a political football that bounces whichever way a president leans. 

Biden on Wednesday at Camp Hale seemed to acknowledge the potential for pressure from future presidents before he symbolically signed the monument declaration. He called is proclamation “permanent” and said it is one that “no future president can overturn.”

In October 2021 when he restored the Utah national monuments, he said “the protection of public lands … must not become … a pendulum that swings back and forth depending on who’s in public office. It’s not a partisan issue.”

Presidents have used the Antiquities Act to create 158 national monuments protecting 750 million acres. Camp Hale is the nation’s 159th national monument, and the ninth in Colorado. It’s the first designated by Biden.

No president has tried to revoke a predecessor’s national monuments. But on 18 occasions presidents have reduced the size of existing monuments. (Congress has abolished 11 presidentially established monuments.) 

Conservation groups quickly sued to overturn Trump’s 2017 proclamations, arguing the Antiquities Act gives the president power to only declare national monuments and reserve lands, not the power to diminish an existing monument. Two lawsuits filed in U.S. District Court in Washington, D.C., were the first legal challenges to a president reducing the size of a national monument. They were stayed in March 2021, after Biden said he would restore the acres sliced from Bears Ears and Grand Staircase-Escalante. Legal analysts are prepared for the issue to rise again, when a Republican president is elected.

Biden made good on his promise to restore the boundaries of Bears Ears, Grand Staircase-Escalante and in August, the State of Utah sued, arguing the president exceeded his authority under the Antiquities Act. 

The Utah lawsuit focuses on the act’s limit on presidential designation of national monuments “to the smallest area compatible with proper care and management of the objects to be protected.”

“President Biden made no  attempt to explain how 3.23 million acres constituted the ‘smallest area compatible with the proper care and management’ of these supposed monuments,” reads the 84-page lawsuit, which argued that 90% of the monuments has never been inspected or intentioned by the federal government. “The federal government cannot care for or manage what it does not understand and has not located, and the president cannot claim that parcels of land the size of small nations are necessary to the protection of monuments based on sheer speculation.” 

Someone sued to revoke the Grand Canyon National Monument designation

Federal lawmakers spent five years in the early 1900s arguing over the Antiquities Act, which was a response to excavation and destruction of historic sites by growing numbers of people hunting for indigenous relics. 

Much of the discussion among elected officials concerned possible limits on how much land the president could set aside for protection. (One proposed amendment limited the size to a square mile in any one place.)

The size of monuments has stirred legal fights since the inception of the Antiquities Act. All of them have revolved around that “smallest area compatible” phrase in the legislation. 

  • The first designation by President Theodore Roosevelt in September 1906 protected 1,152 acres around Wyoming’s Devils Tower. By the end of his second term Roosevelt had designated 18 national monuments including the 808,120-acre Grand Canyon National Monument. A mining businessman sued Roosevelt over the Grand Canyon designation, which the Supreme Court rejected. 
  • President Franklin Roosevelt was sued over his designation of the 221,610-acre Jackson Hole National Monument in 1943. A federal court declined to overturn the proclamation. Congress stepped in and approved legislation abolishing the Jackson Hole monument, which Roosevelt then vetoed. Congress refused to fund the monument, but President Harry Truman ended the stalemate in 1950 by creating Grand Teton National Park with legislation that included an amendment to the Antiquities Act requiring Congressional consent for any new or expanded monuments in Wyoming.
  • President Jimmy Carter in 1978 deployed the most sweeping proclamation in Antiquities Act history when he established 17 national monuments covering 56 million acres in Alaska. It was not a popular move in Alaska. Protestors burned Carter in effigy in Fairbanks. Still, the designations paved the way for the Alaska National Interest Lands Conservation Act, the still largest-ever expansion of public lands protection in U.S. history, which rescinded most of Carter’s monuments but set aside more than 100 million acres in Alaska for varied levels of protection.
  • President Clinton’s monument designations in Utah and California spurred lawsuits that he exceeded his authority under the Antiquities Act and, again, did not adhere so the act’s “smallest area” limit. Lower courts dismissed the lawsuits and the U.S. Court of Appeals for the D.C. Circuit rejected appeals. 
  • President Obama’s 2016 establishment of the 4,913 square-mile Northeast Canyons and Seamounts Marine National Monument 130 miles off the coast of Massachusetts drew an unsuccessful lawsuit by opponents who again raised the “smallest area compatible” argument.

The latest legal challenge emerging in Utah concerns the president’s ability to shrink monuments. The federal government argues the president can reduce the size of national monuments. How else can a monument be downsized if it’s never proven that extra acres were included in the initial designation, per the “smallest area compatible” rule? There’s a long history of presidents adjusting and modifying national monuments, the federal government argues in its briefs and responses to motions in the ongoing lawsuits challenging Trump’s reduction of the two Utah monuments. 

University of Colorado Law School professor Mark Squillace has taught law students the nuances of the Antiquities Act for decades. He says the act does not give the president the authority to revoke or reduce a national monument. Only Congress can do that. 

While presidents have shrunk national monuments created by their predecessors — including President Woodrow Wilson’s controversial 313,000-acre reduction of Mount Olympus National Monument in 1915 — there have not been any court challenges to presidential reductions until the 2017 lawsuits challenging Trump’s Utah reductions. 

The ruins of the city that sprung up in the Pando Valley near Leadville starting in 1942 still are visible from the sky. About 15,000 people trained at Camp Hale and became some of the most effective soldiers in World War II. (Jason Blevins, The Colorado Sun, via EcoFlight)

In 2017, Squillace and several colleagues wrote a summary of the Antiquities Act legal challenges, saying that allowing a president to second-guess the judgment of a predecessor regarding the size of a national monument “is fraught with peril because it essentially denies the first president the power that Congress granted to proclaim monuments.”

“If that were the law, then nothing would stop a president from deciding that the objects identified by a prior president were themselves not worthy of protection,” Squillace’s analysis reads. “Once the president has determined that these objects are worthy of protection, no future president should be able to undermine that choice.”

“It doesn’t seem to have anything to do with whether it’s a good idea”

Squillace pointed to communities in Alaska and Utah that once opposed national monuments that now embrace the visitors and economic activity surrounding those destinations. 

“Once communities get used to these monuments they don’t want to get rid of them,” he said Tuesday in an interview. “Even some pretty conservative politicians have come to recognize the value of these national monuments. This is just so political sometimes. It doesn’t seem to have anything to do with whether it’s a good idea or a bad idea, just opposing a president that isn’t in your party.”

U.S. Rep. Joe Neguse, a Lafayette Democrat and lead sponsor of the CORE Act, acknowledged there may some ambiguity around whether a future president can unwind the Camp Hale monument designation. But he’s confident that wouldn’t happen.

“I think that this decision will stand the test of time,” he told The Colorado Sun. “I can’t imagine why a future administration or my colleagues on the other side of the aisle would seek to undermine these designations given that they are so broadly popular with the public here in Colorado.”

U.S. Rep. Lauren Boebert, a Western Slope Republican, calls the Antiquities Act an outdated tool. In a letter to Biden sent last month, she urged the president to let the CORE Act play out in Congress. 

“The Biden administration has already shown its willingness to implement federal land grabs as evidenced by their actions on Bears Ears and Grand Staircase-Escalante in Utah which undid President Trump’s right-sizing of these monuments,” reads a Sept. 23 statement from Boebert’s office

It’s unclear exactly what the new national monument at Camp Hale will look like. The White House said Wednesday morning that the U.S. Forest Service will manage the land and has been directed to develop a plan for preserving and interpreting cultural and historical resources related to Camp Hale and the Ute people, who used the land for food, shelter and medicine until they were forced off in the mid-1800s. The monument also will be managed to support current recreational uses including skiing, hiking, camping and snowmobiling.

Most everyone expects that the new monument will hew closely to the plans outlined in the CORE Act’s Continental Divide Recreation, Wilderness and Camp Hale Legacy Act. It’s expected the new Camp Hale – Continental Divide monument will include most of Camp Hale and areas in the Tenmile Range. The wilderness proposals in that act — which amended the 1993 Colorado Wilderness Act to add 33,037 acres of new wilderness area, including two new wilderness areas and three additions to existing wildernesses in the White River National Forest — are not part of the Camp Hale-Continental Divide national monument. Wilderness designations can only be made by Congress. 

Susie Kincade, the Eagle County wilderness advocate with the Wilderness Workshop,said the CORE Act process created “an important new way to do public lands protection” by spending a decade meeting with users, advocates, residents and local leaders around the state. Colorado U.S. Sen. Michael Bennet, a Democrat who is running for reelection, shepherded that process.

“It wasn’t easy to get here but I think next time it will be easier because we know what has to be done,” Kincade said. 

Presidents have a lot of leeway when it comes to designating monuments. A future president should be wary of fighting public lands protection, Donovan said, noting support for accessible public lands crossing all political spectrums and ideologies.  

“So I think a rollback of this would not would not be politically wise for an executive to take in the future. But it is very reflective for an executive to take now because of the immense support that there is, it also has this incredible tie into American history,” said Donovan, who shared letters her grandfather sent home from his tours at Camp Hale. “What the impact of this landscape has had on the arc of American history is pretty rad.”

A letter state Sen. Kerry Donovan’s grandfather sent home in 1942 letting his parents know — hush, hush — that his unit was moving to the Colorado mountains. (Provided by Kerry Donovan)

Jason Blevins

The Colorado Sun — jason@coloradosun.com Email: jason@coloradosun.com Twitter: @jasonblevins