President Barack Obama is using his executive power to issue a broad swath of environmental protections during his last weeks in office, guarding himself against a successor who has vowed to roll back parts of that agenda.

As part of this effort, Obama has made historic use of a 110-year-old law signed by Theodore Roosevelt that gives a president unilateral authority to designate national monuments on land already owned by the federal government.

Some Republicans in Congress have long accused Obama of abusing the law—the 1906 Antiquities Act.

“What was created 110 years ago for the purpose of giving the president power to protect some of our natural resources and archeological treasures from imminent destruction has lost its meaning over time,” said Sen. Mike Lee, R-Utah, in an interview with The Daily Signal. “The envelope has been pushed to the point where there’s nothing left of it.”

Worried that Obama will aggressively act on his way out the door, opponents like Lee are now gearing up for a protracted fight to amend or repeal the law, and are even vowing to work with the incoming Donald Trump administration to overturn monuments already named by Obama.

They are paying special attention to Obama’s next rumored target for a national monument designation, a site known as Bears Ears in southeastern Utah, a 1.9 million-acre retreat of mesas and canyons revered by Native Americans who live by it.

“It will kick off a huge flurry of legislative activity should the president take this unfortunate step,” said Lee, who notes he and nearly every elected state and federal official in Utah opposes Obama acting alone to make Bears Ears a national monument. “He [Obama] doesn’t want to be the guy who tarnishes his legacy of reaching out to populations who have been marginalized in the past [Native Americans]—in many instances by the government itself—by further marginalizing them. If he does act, he is asking for a strong response, and this is what that will bring.”

Battle for Bears Ears

Lee and other opponents have been bracing for Obama to name Bears Ears a national monument, and this week he and other Utah political leaders and several state and local elected officials rallied at the Capitol in Salt Lake City, demanding that the president not act.

Five tribal nations have joined to ask Obama to designate Bears Ears a national monument, arguing that this is the way to best protect the site from looting, mining, and drilling.

The site is not reservation land — it is owned by the federal government and managed by the Bureau of Land Management, U.S. Forest Service, and National Park Service. But local Native Americans depend on it for sustenance, religious activity, and cultural tradition.

The tribal coalition of Navajos, Zunis, Hopis, Utes, and Ute Mountain Utes is proposing to jointly manage the land with the government.

Elected officials who serve the state say the Obama administration’s consideration of Bears Ears as a national monument shares characteristics with the president’s recent use of the Antiquities Act in that there is significant local opposition to unilateral action.

They argue that the coalition of tribes supporting the monument do not reflect the local sentiment of Native Americans, because the group is supported by major conservation groups and nature advocates.

Powerful Republicans in Congress representing the area—including Reps. Rob Bishop, who chairs the House Natural Resources Committee, and Jason Chaffetz, who chairs the House Oversight and Government Reform Committee—have introduced legislation that would protect a portion of Bears Ears while opening other parts of the state to development.

The massive public lands bill—called the Utah Public Lands Initiative—includes a provision that would conserve less of Bears Ears—1.4 million acres instead of 1.9 million acres—and also would allow energy development in certain areas.

The measure, which has not received a floor vote in the House, is opposed by environmental groups and the tribal coalition, who say it does not significantly protect natural resources.

“At the end of the day, we stayed at the table as long as anybody working with Congress and county commissioners trying to come up with a protection mechanism for this landscape,” said Barb Pahl, the senior vice president of field services at the National Trust for Historic Preservation, in an interview with The Daily Signal. “There’s an agreement that we need to protect it, but Congress hasn’t acted. We don’t think their bill provides the protection this amazing region deserves, so it’s time for the president to act.”

‘Right the Wrongs’

Naming a national monument through the Antiquities Act has historically received bipartisan support.

Eight Democratic presidents and eight Republicans have used the law in some form, according to the Wilderness Society, designating a combined 152 national monuments.

Yet Bishop and Lee argue some of Obama’s designations have been overly ambitious, and influenced by persistent advocacy from outside groups.

Only Franklin D. Roosevelt has used the Antiquities Act authority more often.

USA Today reported that over the last five years, Obama has designated national monuments for reasons that go beyond conservation. He’s recognized sites important to Latinos, labor unions, African-Americans, Japanese-Americans, and women.

“There are some special-interest groups that think they are empowered because of this act,” Bishop told The Daily Signal in an interview. “That is why the Antiquities Act needs to be reformed.”

If Obama makes Bears Ears a national monument, Bishop says he can use several tools to retaliate. He says he will “immediately” draft legislation to rescind the monument designation, reintroduce the Utah Public Lands Initiative, and aim to block funding through the appropriations process.

All of those moves would likely struggle to advance in a divided Congress, Bishop acknowledges.

To guard against that possibility, Bishop told The Daily Signal that he’s personally lobbied the Trump administration for the president-elect to act alone to overturn Obama’s potential monument designation of Bears Ears.

“If Obama and [Bill] Clinton can abuse this act so badly, I would tell Trump to give himself the ability to change that and right the wrongs that have been done,” Bishop said.

A president has never before rescinded a previous monument designation, although in a few instances, presidents have shrunk the boundaries of a previous president’s proclamations.

The Antiquities Act does not explicitly say whether a president can overturn or change a monument designation, and the concept has not been tested in court.

Bishop and Lee are confident such an action would pass legal muster.

“We are very confident that a subsequent president could at the minimum redraw the boundaries of a previously designated monument,” Lee said. “There is also a thought that what one president can create, another president can extinguish under the Antiquities Act.”

Pahl of the National Trust for Historic Preservation counters that politicians would be making a mistake by upending more than a hundred years of tradition.

“Some of our most beloved national park units and places began life as national monuments designated under the Antiquities Act,” said Pahl, who referenced the Grand Canyon as an example. “Maybe at the moment some of these decisions have seemed like mistakes, but if you look over the course of time, the American people are grateful for these protections, and to all of a sudden pull the plug from them would be wildly unpopular.”

Bishop says his resistance is about process, not substance, and that there are more holistic ways to protect vulnerable federal land.

“We will do everything that has to be done to make sure a monument at Bears Ears is not done through the Antiquities Act, but through legislation, so the people have a say on what they want to do,” he said. (For more from the author of “Fearing Late Action by Obama, Republicans Consider Curbing Presidential Power to Declare National Monuments” please click HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

After President Barack Obama exits office, at least 88 of his political appointees will likely remain working in the federal government under a Donald Trump administration, according to numbers from the Office of Personnel Management.

From Jan. 1, 2010, through Sept. 30, 2016, federal agencies selected 112 political appointees for career civil service jobs. Of those, the Office of Personnel Management approved 88 and rejected 24.

Unlike political appointees, federal workers in the civil service system are hired through a merit system, are difficult to fire, and carry over during administration changes, Republican or Democrat.

Political appointees are allowed to transition to career federal jobs, but under the law, they are supposed to go through the same merit-based selection process as other applicants.

“Selecting civil servants based on ideology instead of qualifications results in a less effective, more politicized bureaucracy,” Henry Kerner, assistant vice president of Cause of Action Institute, said in an email to The Daily Signal Tuesday. “Burrowing also provides the outgoing presidential administration the ability to reward its allies by stacking agencies with politically-aligned people who will be less inclined to help implement the new administration’s priorities.”

After an agency has hired a political appointment to a career position, the conversion has to face final approval by the Office of Personnel Management.

“Federal guidelines require agencies to seek approval from [the Office of Personnel Management] for such moves, but it’s unclear how often these rules are followed,” Kerner added.

Office of Personnel Management spokeswoman Laura Goulding said the number could be higher.

“It’s difficult to provide an accurate number of Obama administration employees who may be in the process of converting, since it changes by the day,” Goulding told The Daily Signal.

She added, “We don’t know how many political appointees apply for permanent federal positions; we just see the number of selectees. [The Office of Personnel Management] has checks and balances in place to ensure cases requiring pre-appointment review are submitted to OPM for approval.”

An Obama administration political employee, who converted earlier this year to a civil service job in the Department of Veterans Affairs, could be playing a role in the presidential transition.

This could at least violate the spirit of the policy on presidential transitions, which is supposed to minimize partisanship, according to the Cause of Action Institute, a conservative government watchdog group.

The organization is more broadly investigating how many political appointees are moving into career civil service positions, a practice known as “burrowing.” The watchdog has made a Freedom of Information Act request to both the Office of Personnel Management and the VA.

Obama appointed Gina Farrisee in September 2013 to serve in the political job of VA assistant human resources secretary. In May, she converted to the career civil service position of deputy chief of staff—a role she will continue in after Trump takes office.

Before serving in the VA, Farrisee was an Army veteran and was awarded several military decorations. She served as the commanding general of the U.S. human resources command at Fort Knox, Kentucky.

“According to information obtained by [Cause of Action] Institute, Gina Farrisee, the deputy chief of staff at VA, is apparently a key member of the VA White House transition team that is preparing the agency for the next administration,” wrote Lamar Echols, counsel for Cause of Action, in a FOIA request to the VA. “If true, this arrangement creates the appearance that the transition process will be managed by Obama administration political appointees because Ms. Farrisee was an Obama administration appointee until May 2016.”

That could be a problem because each federal agency is supposed to have two transition leaders, one from the political level and another from the career level.

“In this case, it appears a former political appointee will be playing the role of a nonpartisan career employee, an apparent conflict of interest,” Echols wrote.

Echols’ letter said this could also go against a May executive order by Obama, which said:

The peaceful transition of power has long been a hallmark of American democracy. It is the policy of the United States to undertake all reasonable efforts to ensure that presidential transitions are well-coordinated and effective, without regard to party affiliation.

The VA did not respond to phone and email inquiries from The Daily Signal as of post time to confirm whether Farrisee is part of the transition team.

Goulding, with the Office of Personnel Management, said, “We can’t confirm any specific members of transition teams; we don’t have that information.”

The Obama administration did not follow the rules to avoid political favoritism in hiring a quarter of all Obama administration political appointees into career civil service jobs, according to a Government Accountability Office report issued in September.

The report covered 30 federal agencies from Jan. 1, 2010, through Oct. 1, 2015. According to the report, agencies failed to get final Office of Personnel Management approval when hiring political appointees to career jobs.

“In those instances where the agency did not submit a request for pre-appointment review, [the Office of Personnel Management] informs the agencies in writing of the requirement to conduct a review of the selection post-appointment,” Goulding said, adding:

OPM also works with agencies to increase awareness and understanding of OPM policy in this area. In addition, we are required by law to report to Congress when those individuals who underwent a pre-appointment review were appointed to the career position.

(For more from the author of “Obama Political Appointees to Continue as Career Employees Under Trump” please click HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.