Armed with a new legal directive arguing that presidents have the power to abolish national monuments created by their White House predecessors, President Donald Trump is expected to move to eradicate or shrink sites — and trigger a legal fight that could find its way to the Supreme Court.
The Justice Department’s Office of Legal Counsel (OLC) published an opinion Tuesday overturning nearly 90-year-old guidance that said presidents could not revoke national monument status.
Lanora Pettit, who serves as deputy assistant attorney general, wrote that the Antiquities Act of 1906 not only allows the president to set aside existing public lands to protect areas of cultural, historical or scientific interest, but also grants the power to rescind existing sites that “either never were or no longer are deserving of the Act’s protections.”
That opinion — which serves as legal advice to the executive branch, rather than a binding court ruling — could set the stage for a fresh legal battle over the 119-year-old law. Critics of the Antiquities Act have urged Trump to take the fight to the nation’s highest court and ensure the law is curtailed. The administration has been taking a look at monuments that could be targeted, focused on sites with the potential for mineral extraction.
“It’s quite obvious this opinion was done to try and justify something they plan to do going forward,” said Mark Squillace, the Raphael J. Moses professor of natural resources law at the University of Colorado Law School.
“That’s not to say the court might not agree with the opinion,” he added. “The court may be inclined to try and pull back on the Antiquities Act.”
Debate over the Antiquities Act tends to divide along political lines, with Republicans and other critics arguing that Democratic presidents have abused the law to set aside sprawling swaths of land that could otherwise be open to extractive industries, grazing or other uses.
Opponents have long seized on language in the law that requires a monument to “be confined to the smallest area compatible with proper care and management of the objects to be protected.”
But proponents point to decades of legal precedent supporting presidential prerogative to create monuments of any size, which dates back to President Theodore Roosevelt’s 1908 creation of what was then the 800,000-acre Grand Canyon National Monument.
The first Trump administration made clear it aligned with critics, initiating a massive review of monuments created since 1996 under then-Interior Secretary Ryan Zinke.
Trump ultimately excised more than 2 million acres of lands from both Bears Ears and the Grand Staircase-Escalante national monuments in Utah and struck down commercial fishing prohibitions in a marine monument.
But that action spurred a pair of lawsuits saying Trump had exceeded his authority under the 1906 law, with Native American tribes and environmentalists asserting that only Congress has the authority to alter a monument.
Those cases — as well as a subsequent challenge filed by Utah when then-President Joe Biden restored the monuments in 2021 — remain pending in federal courts.
Critics of the Antiquities Act have been itching for the Supreme Court to take up a challenge to the law since 2021, when Chief Justice John Roberts wrote in a statement about an Antiquities Act case that the law “has been transformed into a power without any discernible limit.”
Sites on the chopping block
The Justice Department’s decision to revisit an opinion issued during President Franklin Roosevelt’s second term shouldn’t come as a surprise, Squillace said.
“The previous Justice Department opinion from 1938 quite clearly said the president cannot rescind a monument,” Squillace said. “I’m guessing that the White House thought that that might be a problem for them if they decided to rescind any of the national monuments.”
The White House is looking closely at where it can abolish or reduce the size of national monuments designated by Democratic presidents, including six that appeared on a shortlist in April after the Bureau of Land Management conducted an internal review of areas with existing mineral withdrawals, according to two people familiar with the list at that point.
In addition to the two Utah sites, that list included the Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon and the Ironwood Forest monuments in Arizona, the Organ Mountains-Desert Peaks monument in New Mexico, and the Chuckwalla monument in California.
“There will almost certainly be litigation if he tries to shrink or rescind any of these monuments,” Squillace said.
That could raise new questions about what constitutes the monument itself, Squillace said, pointing to the Bears Ears site, which is described in Biden’s 2021 proclamation as a collection of “deep sandstone canyons, broad desert mesas, towering monoliths, forested mountaintops dotted with lush meadows, and the striking Bears Ears Buttes” and is considered important land to more than two dozen Native American tribes.
“That’s a cultural landscape. You can’t look at a single site. You have to look at the whole landscape because these cultural resources are all connected in some fashion,” he said.
But Frank Garrison, an attorney with the Pacific Legal Foundation, praised the White House’s effort to rein in the law, saying that “successive presidents have illegally expanded the scope and size of monuments.”
“The result is that the Act has become an unlawful mechanism for the president to unilaterally make significant policy decisions limiting productive activity on federal property and in the sea,” Garrison said in a statement. “The revocation of many current national monuments is compelled by law.”
Garrison added that the OLC opinion is “an important first step to begin conforming the government’s conduct to the plain requirements and original intent of the Act.”
The White House did not respond to questions about whether Trump plans to reduce those specific monuments or others given the new legal directive, but a spokesperson instead touted provisions in House Republicans’ megabill that aim to expand oil, gas and mineral leasing on federal lands.
“It’s imperative that the Senate passes [the bill] to completely end Biden’s war on American energy, and will liberate our federal lands and waters to oil, gas, coal, geothermal and mineral leasing,” said White House spokesperson Harrison Fields.
A report published by The Wilderness Society found the BLM oversees nearly 247 million acres of land in the continental United States with potential for oil and gas, of which 84 percent is already open to leasing.
“Hopefully the administration will see that most of these designations are very popular with people who live there and who visit these huge monuments,” said Carl Tobias, the Williams chair in law at the University of Richmond School of Law.
“No matter what happens, there’s likely to be litigation,” Tobias added. “Especially if he moves on what the opinion says and issues an executive order, or tries to undo various national monuments around the country.”
Democratic pushback
Utah Republican Sen. Mike Lee, chair of the Senate Energy and Natural Resources Committee, commended the Department of Justice’s legal opinion during a hearing Wednesday to vet the Trump administration’s proposed budget for the Interior Department.
“The federal government has often operated under a flawed interpretation of the Antiquities Act, one that allowed presidents to unilaterally lock up millions of acres of land but denied future presidents the authority to undo or even revise those designations,” Lee said. “But as the OLC’s recent opinion discusses at length, there is actually a long history, spanning decades, of presidents reducing the size of previously designated national monuments or even de-designating them altogether.”
He said “with this new legal clarity, we hope the Department of the Interior will work with us to ensure that public lands are managed in a way that reflects the needs of those who live closest to them.”
Sen. Alex Padilla (D-Calif.) panned the legal opinion during the hearing as “extremely dangerous” and one that “flies in the face of 90 years of precedence.”
Padilla, who pushed the Biden administration to designate the Chuckwalla and Sáttítla Highlands national monuments, urged Interior Secretary Doug Burgum at the hearing to work with locals before making decisions about national monuments.
“We worked very hard in recent years on establishing and expanding monuments in California in a very thoughtful and balanced way,” he said. “This is personal for me.”
Burgum said Westerners have approached him about monument designations that did not first consult with local people, noting that those people were not talking about the recently designated California monuments. He said the leading complaint people have is that monuments restrict other uses of the land.
“We have a responsibility to get on the ground,” he said of reviewing recently designated national monuments. “The question is not whether monuments serve a purpose. I think the real question is the size.”
Padilla stressed that recent monuments in California were designated after engagement and consultation.
“If it’s going to be revisited or undone, we expect that same level of engagement on the back end, before any action is taken or before any decisions are made,” he said.
In separate statements, California Democratic Sen. Adam Schiff and New Mexico Democratic Sen. Martin Heinrich likewise vowed to push back against any monument reductions or eliminations made by the Trump administration.
“The Trump Administration is seeking to rewrite the Antiquities Act without the approval of Congress and erase all precedent prohibiting the elimination of lands designated as a national monument,” Schiff said. Pointing to the Chuckwalla and Sáttítla sites, he added; “They were properly designated as monuments and we will fight to protect them at all costs.”
But exactly what Congress could do to protect those monuments — whether redesignating them or seeking to shore up the Antiquities Act — remains uncertain. Republican majorities in both chambers are unlikely to strengthen the existing law, and Democrats lack power to reclassify the monuments as national parks or other federal lands.
Heinrich, the top Democrat on the Senate Energy and Natural Resources Committee, said: “I will oppose any attempt by President Trump or congressional Republicans to rip away our national monuments, using this outrageous path or otherwise. We’re ready to fight back — and we won’t back down.”
