A key legal adviser to the White House said that President Donald Trump has the authority under existing federal law to abolish a pair of national monuments in California, as well as any others across the country created by prior presidents.
Lanora Pettit, who helms the Justice Department’s Office of Legal Counsel (OLC), overturned a nearly 90-year-old precedent governing national monuments in a new legal opinion published Tuesday but dated May 27.
The opinion, authored by Pettit, declares that the Antiquities Act of 1906 not only allows presidents to create national monuments from federal lands, but also says they can declare that existing monuments “either never were or no longer are deserving of the Act’s protections.”
Pettit said in her opinion that the White House asked the office to examine whether Trump could revoke former President Joe Biden’s proclamations creating the Chuckwalla and Sáttítla Highlands national monuments in California.
“We think that the President can, and we should,” wrote Pettit in the opinion, which covers monuments broadly. There are more than 100 monuments established by prior presidents that have not been altered by Congress in some way, including converting the lands into national parks.
Pettit also wrote that she was asked to review a 1938 opinion issued by then-Attorney General Homer Cummings to then-President Franklin Roosevelt, which has long guided interpretations of the Antiquities Act.
In that opinion, Cummings determined that one president could not abolish a monument created by predecessors, ruling that because the designations are equivalent to an act of Congress, only lawmakers could abolish a monument.
But Pettit criticized the 1938 ruling, writing that “presidents have long been understood to have the power to come to a different factual decision regarding whether particular objects within a previously reserved monument merit protection.”
“For large parcels with multiple monuments (like Chuckwalla and Sáttítla Highlands), there is no principled distinction between determining that one object is not worth protecting or all of them — and, by operation of law, no reasoned distinction between reducing and eliminating the parcel,” she added.
In addition to the two California sites, the Trump administration has been weighing reductions to four other monuments: Bears Ears and Grand Staircase-Escalante national monuments in Utah, Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon and the Ironwood Forest monuments in Arizona, and the Organ Mountains-Desert Peaks monument in New Mexico.
Justin Pidot, a law professor at the University of Arizona who previously worked at White House’s Council on Environmental Quality, said the OLC opinion marks a “radical shift” that could potential impact dozens of monuments now and into the future.
“This will go down as one of the most significant rollbacks in conservation in history,” Pidot said.
Pettit’s interpretation of the Antiquities Act would effectively reduce protections for monuments to just the length of a presidential term, he said.
“It means that national monuments exist only at the pleasure of the current president who is in power,” Pidot said. “It protects the resources, but there’s no permanence.
“That’s a big difference from where we’ve been for more than 100 years where the president protects monuments and they stay unless Congress acts,” he added.
But Margaret Byfield, executive director of American Stewards of Liberty, which advocates for private property rights, praised the change and views it as an avenue to roll back a monument process that critics argue have enshrined too much federal acreage.
“The legislative record shows Congress never authorized Presidents to use the Antiquities Act to protect millions of acres of land across America,” Byfield said. “The new legal opinion from the Counsel to the President makes this clear and our hope is that President Trump will immediately begin eliminating, or at the very least, drastically shrink the massive National Monuments created by the Clinton, Bush, Obama and Biden administrations. These lands need to be opened back up to the people for recreation and productive uses.”
