Trump DOJ Outlines Legal Justification to Abolish Monuments (1)

A US president’s power to create and undo national monuments under the 1906 Antiquities Act is among the White House’s “most sweeping unilateral powers,” the Justice Department said in a slip opinion.

The opinion forms the Justice Department’s rationale for abolishing national monuments, many of which have been declared by presidents to protect large swaths of public land from development.

President Donald Trump has been largely hostile to large national monuments and has taken steps to consider allowing mining companies to access minerals within them.

In his first term, Trump shrank Utah’s Bears Ears and Grand Staircase-Escalante national monuments, which were created by former presidents Barack Obama and Bill Clinton. President Joe Biden re-expanded those monuments. Both are now subject to litigation brought by Utah in the US Court of Appeals for the Tenth Circuit in Garfield County v. Biden, a ruling on which could come anytime.

The opinion that was made public Tuesday reverses and disavows a 1938 Justice Department opinion, which the federal government has relied upon to determine that monument designations are irrevocable.

It specifically challenges Biden’s 2025 creation of Chuckwalla and Sáttítla Highlands national monuments in California. Both received broad support from area tribes, the state, and California’s congressional delegation.

“We conclude that the Antiquities Act permits the President to alter a prior declaration of a national monument, including by finding that the ‘landmarks,’ ‘structures,’ or ‘objects’ identified in the prior declaration either never were or no longer are deserving of the Act’s protections,” the opinion issued May 27 concludes.

The opinion cites US Supreme Court Chief Justice John Roberts in his 2021 response to a denial of certiorari in Massachusetts Lobstermen’s Association v. Raimondo that he’d be interested in hearing a challenge to the Antiquities Act.

Roberts wrote that the act’s use has been “transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain,” and the court may have an opportunity to consider the issue in the future.

White House spokesman Harrison Fields said President Donald Trump “shocked” the energy industry back to life and called on the Senate to “liberate our federal lands and waters to oil, gas, coal, geothermal, and mineral leasing.”

The Interior Department didn’t immediately respond to requests for comment Tuesday.

‘Dubious’ Reasoning

With the opinion, the Trump administration is saying it has the power to abolish or shrink national monuments that have not yet been ratified by Congress, said John Leshy, a University of California College of the Law professor who served as Interior’s solicitor general in the Clinton administration.

“Of course his Administration has so far, contrary to the expectations of many, not done any abolition or even shrinking, because, I think, it has (correctly) calculated such steps are likely to be unpopular, perhaps wildly so,” Leshy said in an email.

The opinion could “put members of Congress who have national monuments in their districts (including especially Republican members) in a somewhat uncomfortable position of taking a position on whether they think Trump should abolish any of those national monuments,” he said.

The 1938 legal opinion determined that the Antiquities Act authorized only one-way authority to protect land as monuments, most of which were designated on existing federal lands, said Mark Squillace, a natural resources law professor at the University of Colorado Law School.

“Congress is always free to override a decision of the President to designate a national monument but has never done so with respect to any significant monument,” Squillace said.

The Justice Department’s legal reasoning is “highly dubious,” said Deborah A. Sivas, director of the environmental law clinic at Stanford Law School.

“It relies on a general default concept that the President has authority to reverse a prior presidential action, for example by repealing prior Executive Orders,” Sivas said in an email. “That general concept does not hold, however, where Congress has explicitly delegated its authority.”

The Antiquities Act flows from Congress’ power under the property clause of the Constitution, she said.

“The President has the express power to designate monuments, but Congress has not delegated (that is, has reserved to itself) the power to rescind them,” Sivas said.

The Southern Utah Wilderness Alliance, which advocates for Bears Ears and Grand Staircase-Escalante, said the public broadly supports monuments and it will fight efforts to abolish them.

“These monuments represent the crown jewels of our nation’s public lands and contain unique plant and animal species, cultural resources, and scientific wonders found nowhere else on Earth,” said Steve Bloch, legal director for SUWA.