Department of Justice Gives Trump Go-Ahead to Eliminate National Monuments

The Trump administration has long touted the downsizing and elimination of national monuments, and a legal opinion from the Department of Justice argues that the president has the power to do that.

The Department of Justice, in an opinion issued Tuesday, argues President Donald Trump has the power to review and eliminate national monuments to make way for development and resource extraction on public lands—walking back a previous opinion from the department that found only Congress can dismantle a national monument.

Since Trump took office, his administration has touted the idea of shrinking or eliminating national monuments his predecessors created. Tuesday’s opinion, which stems from a White House request after it attempted to eliminate two monuments earlier this year, has no influence on case law that has upheld the protection of national monuments, but it does offer insight into how the Trump administration is likely to justify dismantling protected areas in court.

Presidents have the power to create new national monuments using the Antiquities Act. Signed by President Theodore Roosevelt in 1906, the law was used to first protect the Grand Canyon and other areas before they became national parks, with more than 160 areas having been protected. The opinion comes just days after rallies were held across the country calling for the continued protection of national monuments.

The creation of monuments and the protection of public lands managed by the federal government remain broadly popular, but the law and protected areas have come under attack from some Republicans and the Trump administration, who argue the use of the Antiquities Act to safeguard land is an abuse of power not in the best interest of local communities.

That line of thinking is front and center in Deputy Assistant Attorney General Lanora Pettit’s opinion, posted Tuesday but dated May 27.

“From these modest beginnings, the President’s authority under the Antiquities Act has come to be described as ‘one of the most sweeping unilateral powers available to a chief executive,’” Pettit writes. “Without ‘any congressional approval, formal studies, or public participation,’ Presidents have used that power to withhold vast swaths of the American land and seascape from potentially beneficial economic use by designating over 100 national monuments, the largest of which spans 582,578 square miles or 373 million acres.”

Legal interpretations of the Antiquities Act have long been guided by a 1938 opinion issued by then-Attorney General Homer Cummings, which found only Congress could eliminate a national monument, not the president.

Pettit criticized that opinion’s findings, saying that “for large parcels with multiple monuments, 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.”

Mark Squillace, a professor of natural resources law at the University of Colorado Law School, said in an email that the 1938 opinion determined the Antiquities Act “did not specifically authorize future presidents to reverse the decisions of their predecessors.” The power to reverse a monument rests with Congress, he said, but Congress has never used it.

“We should not forget that these are public lands,” he said. “As such, protecting these shared public resources, including the cultural, biological and aesthetic resources, on our public lands should be the government’s management priority. In this sense, doubts about the president’s authority should be resolved in favor of protecting those resources, because once they are gone they are likely lost forever.”

The White House did not provide a comment on the DOJ’s opinion, with Harrison Fields, a spokesperson, only offering a statement saying the administration’s budget bill must pass “to completely end Biden’s war on American energy” and “liberate our federal lands and waters to oil, gas, coal, geothermal, and mineral leasing.”

Conservation groups were quick to lambast the DOJ’s opinion. Taylor McKinnon, the Southwest Director at the Center for Biological Diversity, in a statement called it a “desperate attempt to rewrite a century of caselaw in order to feed America’s national monuments into the ravenous maw of the fracking and mining industries.”

“The MAGA fixation on enriching polluting extractive industries at the expense of our natural heritage is a national embarrassment and an insult to every single American,” he said. “These monuments protect some of our most iconic landscapes and cultural treasures. We’ll fight like hell to safeguard their future.”

Pettit’s opinion says that presidents previously have adjusted national monuments after their creation. But the opinion goes a step further, arguing the president has the power to completely eliminate the protected areas. It also echoes a common Republican talking point that the law was meant to protect “Indiana Jones-type archeological” sites, as Interior Secretary Doug Burgum has said, and not full landscapes. 

But the law doesn’t say presidents must make the monuments as small as possible, only that they should be “confined to the smallest area compatible with the proper care and management of the objects to be protected” and that the government can expand the size of the monuments with other public lands or even by acquiring private lands “as may be necessary for the proper care and management of the object.”

Attacking national monuments to make way for development has been a priority of both the first and second Trump administrations. Many of the targeted monuments hold access to minerals like uranium, coal and copper and in some cases, prevented some mines from expanding operations. The administration has vowed to boost the country’s domestic mining industry.

In March, the Trump administration announced it would eliminate California’s Chuckwalla and Sáttítla Highlands national monuments before removing language from a White House fact sheet announcing that decision. Then, in April, The Washington Post reported the administration was considering shrinking Baaj Nwaavjo I’tah Kukveni—Ancestral Footprints of the Grand Canyon; Ironwood Forest; Chuckwalla; Organ Mountains-Desert Peaks; Bears Ears and Grand Staircase-Escalante national monuments. The previous Trump administration shrank Bears Ears and Grand Staircase-Escalante national monuments, which prompted environmental groups, tribes and other groups to sue the government. The monuments were restored to their original sizes, or slightly expanded, by the Biden administration. 

When Bears Ears and Grand Staircase-Escalante national monuments were shrunk under the first Trump administration, tribes and environmental groups were quick to sue. Those groups have signaled they will turn to the courts again if necessary to protect targeted areas.

“The Trump administration can come to whatever conclusion it likes, but the courts have upheld monuments established under the Antiquities Act for over a century,” Jennifer Rokala, executive director of the Center for Western Priorities, said in a statement. “This opinion is just that, an opinion. It does not mean presidents can legally shrink or eliminate monuments at will.”

Cover photo:  Hikers move through Grand Staircase-Escalante National Monument in Utah. Credit: Bob Wick/BLM